           Case: 11-15792    Date Filed: 12/19/2012   Page: 1 of 17

                                                          [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                               _____________

                                No. 11-15792
                               _____________

                    D. C. Docket No. 3:08-cv-00856-CLS

SONJA D. KING,

                                                       Plaintiff-Appellant,

                                   versus

VOLUNTEERS OF AMERICA, NORTH ALABAMA, INC.,

                                                       Defendant-Appellee.

                              ______________

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

                            (December 19, 2012)

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

PER CURIAM:
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      Sonja D. King (“King”), an African-American female, appeals the district

court’s order granting summary judgment to Volunteers of America, North

Alabama, Inc. (“VOA”) on her complaint in which she alleged racial

discrimination, 42 U.S.C. §§ 1981, 2000e-2(a)(1); retaliation, 42 U.S.C. § 2000e-

3(a); and a hostile work environment, 42 U.S.C. § 2000e-2(a)(1). After reviewing

the record, reading the parties’ briefs, and having the benefit of oral argument, we

reverse the district court’s judgment and remand for further proceedings.

                                          I.

      A. Facts

      In 2002, King began working at VOA, a Christian organization that, among

other things, operates group homes that serve developmentally-challenged

individuals in Florence, Alabama. In April 2005, after her return from deployment

to Iraq as a member of the Alabama National Guard, King was promoted to service

coordinator, the position she held until her termination on December 4, 2006.

King reported to Teresa Stephenson (“Stephenson”), the program director for

operations of VOA in Florence. Stephenson reported to Victor Tucker (“Tucker”),

the chief executive officer of VOA.

      King alleges that during her employment as a service coordinator,

Stephenson subjected her and other African-American employees to a near-daily

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barrage of racial harassment and discrimination, all of which VOA human

resources and management ignored. Among the many comments directed at King

and other employees by Stephenson were: “Black people have a nasty attitude;

they’re nasty; they’re ignorant;” “[I’m n]ot going to hire any black dudes here

because they are drug dealers and might damage the clients;” “Black clients have

poop on their asses all of the time;” “Old black women are good for nothing;” “All

black guys are good for is to be in jail and drug dealers;” “White girls who like

black guys are ‘Nigger lovers;’” and “All black people are good for is cleaning up

poop off our client[s’] asses.” [King Aff., R. 43-1 at 11.] King also heard

Stephenson frequently call African-Americans “nigger” and state that “[b]lack men

go to white women because black women are nasty, dumb, and ignorant.” [Id. at

11–12.] Other Caucasian employees allegedly made similar remarks to King and

other African-American employees.

      In addition to the offensive comments, Stephenson allegedly displayed

favoritism towards Caucasian employees and clients and neglected to properly

train and supervise African-American employees. Stephenson also forced African-

American employees to write reports falsely accusing other African-American

employees of misconduct. On several occasions, Stephenson allegedly directed

King to falsely report that other African-American employees were committing

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major infractions, including one of King’s immediate subordinates, Cassandra

Nichols (“Nichols”). She further expressed to King her belief that African-

Americans are inferior to Caucasians and that she wanted only Caucasians in

supervisory positions at VOA.

      Teresa “Tidwell” Slatton (“Slatton”), Natasha Fuqua (“Fuqua”), former

VOA employees, as well as Nichols, reported the harassment to Tucker and human

resources on multiple occasions. While King also asserts she complained to VOA

management and human resources repeatedly, the first specific evidence of King’s

complaints about the hostile environment was in March 2006, when she told

Tucker that “blacks were being discriminated against and racially harassed on the

job” and said that she heard Stephenson state she was having Slatton fired for

complaining about it. [King Depo., R. 43-1 at 24–26.] Tucker told King that he

was unable to discuss her complaints in detail at the moment but asked her to email

him with a suitable time to discuss it further. He also suggested that if it were

more convenient, he could meet her at an Applebee’s located approximately

halfway between the workplace and King’s home. King declined to meet him at

Applebee’s. She admitted that while she felt uncomfortable meeting Tucker away

from the office, she never conveyed her discomfort to Tucker, and she never

emailed him or discussed any of her concerns or complaints with him again.

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Tucker never initiated an investigation into either King’s or any other employee’s

complaints.

      On March 29, 2006, after King complained to Tucker, King received her

first written reprimand for permitting staff to be present while she disciplined

another staff member and for disclosing confidential information about co-workers

to other staff members. The reprimand arose after an employee made a complaint

to Stephenson, which Stephenson then reported to human resources. King denies

the allegations. She says employees admitted that Stephenson forced them to

fabricate a complaint against King. King received her second reprimand on July

24, 2006, for making negative comments and releasing information about a former

employee in response to an inquiry from a prospective employer. King says she

only stated what Stephenson told her to state and that Stephenson gave her

permission to release information.

      King again complained to VOA in August or September 2006. At this time,

King and Nichols met with Robin Bucklin (“Bucklin”) and/or Cordia Bolden

(“Bolden”) in human resources to report harassment and discrimination. She

admits that human resources told her to make a statement of her complaint and that

she failed to do so. King says she did not file a written complaint because at

various times human resources told her to wait to file it, instructed her that it was

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not necessary, and told her it would not be needed until Tucker was notified of her

allegations. Two days after her complaint to human resources, Stephenson warned

employees, including King, in a staff meeting that they should not report any

complaints if they wanted to keep their jobs, and that if they did complain, she

would know about it. On September 10, 2006, Stephenson told another VOA

employee, April Chandler (“Chandler”), that “she was going to get Sonja D. King

back” for reporting the harassment and discrimination and forced Chandler to write

a statement falsely attesting that King engaged in misconduct. 1 [Chandler Aff., R.

82-2 at 3–4.]

       Significantly, Stephenson also told King that “Victor Tucker will rubber

stamp anything I tell him to” and that “Victor Tucker rubber stamps any decision I

make in regard to [VOA] employees” at the Florence office. [King Aff., R. 43-1 at

9.]

       King received her final four reprimands on November 16, 2006,

approximately six weeks after Stephenson told Chandler she would retaliate

against King for King’s complaints. One reprimand was for failing to address a

complaint about a broken heater in one of the group homes. King says she

reported the problem to Stephenson but was told VOA would not replace the heater

       1
         It is unclear from the record whether Stephenson’s comment to Chandler occurred
before or after the August or September meeting with Bolden and Bucklin.
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because the clients were being moved out of the home shortly. Stephenson issued

the reprimand after another employee complained. Another reprimand was for

contacting Nichols while she was on administrative leave pending an investigation

of her alleged misconduct. King does not dispute contacting Nichols but says she

only did so at the request of Stephenson. 2

       King was placed on administrative leave the same day she received the

reprimands. Tucker then directed Bolden to investigate the events surrounding the

reprimands. On December 4, 2006, after Bolden concluded the reprimands were

properly given, Tucker sent King a letter informing her of her termination. In the

letter, he stated that he made the decision based on her failure to address the

defective heating system, her communication with Nichols while Nichols was on

administrative leave, her permitting Nichols to correct her own timesheet, and her

other prior violations of VOA policy.

       B. Procedural History

       After receiving her right to sue notice, King filed this lawsuit in the Northern

District of Alabama on May 14, 2008. She alleged three state law claims, as well

as federal law claims for racial discrimination, retaliation, and hostile work


       2
         The other two reprimands issued on November 13, 2006, were for allowing Nichols to
correct her own timesheet and for failing to cooperate fully in the investigation of Nichols’s
alleged misconduct. Notably, the investigation was inconclusive as to Nichols’s conduct, and
she was permitted to return to work the same day that King was placed on administrative leave.
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environment. In July 2009, VOA moved for summary judgment on all of King’s

state law claims and the discrimination and retaliation claims but not the hostile

work environment claim. In August 2011, the district court granted VOA’s

motion.

      At the pretrial conference held on August 26, 2011, King argued she should

be permitted to amend her complaint to reflect changes in the law due to the

pronouncements in Staub v. Proctor Hospital, __ U.S. __, 131 S. Ct. 1186 (2011)

and Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011). The district

court granted her request. King subsequently filed an amended complaint, which

dropped the state law claims and included new allegations related to not only the

discrimination and retaliation claims but also the hostile work environment claim.

VOA again moved for summary judgment, this time on the discrimination,

retaliation, and hostile work environment claims. The district court granted VOA’s

motion in its entirety, and King timely appealed.

                                         II.

      This court reviews a grant of summary judgment de novo, “viewing the

record and drawing all reasonable inferences in the light most favorable to the non-

moving party.” HR Acquisition I Corp. v. Twin City Fire Ins. Co., 547 F.3d 1309,

1313–14 (11th Cir. 2008) (citation omitted). Summary judgment is proper “if the

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movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                          III.

      Before addressing the merits of King’s claims, we address briefly King’s

argument that the district court erred in allowing VOA to move for summary

judgment on her hostile work environment claim after she amended her complaint.

King contends that instead, the court should have permitted VOA to move for

summary judgment on only the discrimination and retaliation claims, the claims

potentially implicated by the holdings in Staub and Lockheed-Martin. King is

incorrect. Nothing in the district court’s order allowing King to amend her

complaint and inviting VOA to again move for summary judgment precluded VOA

from addressing the hostile work environment claim. This is in accordance with

the district court’s interpretation of its own order, which is entitled to broad

deference. See Alley v. U.S. Dep’t of Health & Hum. Servs., 590 F.3d 1195, 1202

(11th Cir. 2009) (stating that a district court’s interpretation of its own orders are

reviewed for abuse of discretion). King’s argument that the district court

improperly construed the evidence in violation of Reeves v. Sanderson Plumbing

Products, 530 U.S. 133, 120 S. Ct. 2097 (2000), is also without merit.




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       We now turn to the substance of King’s claims. First, we address whether

the district court erred when it granted summary judgment against King’s claim of

racial discrimination. Second, we address whether the district court erred when it

granted summary judgment against King’s claim of retaliation. Finally, we address

whether the district court erred when it granted summary judgment against King’s

claim of hostile work environment.

       A. Discrimination Claim

       King concedes both that she cannot establish her case through direct

evidence and that she cannot establish a prima facie case under the traditional

burden-shifting framework of McDonnell Douglas because she has no relevant

comparator, and there is no evidence that she was replaced by a Caucasian

employee. 3 But, as we have recently explained, “[t]here is more than one way to

show discriminatory intent using indirect or circumstantial evidence”:

       One way is through the burden-shifting framework set out in
       McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
       (1973), and Texas Department of Community Affairs v. Burdine, 450
       U.S. 248, 101 S.Ct. 1089 (1981). Another way is “present[ing]
       circumstantial evidence that creates a triable issue concerning the
       employer’s discriminatory intent.” Smith v. Lockheed-Martin Corp.,
       644 F.3d 1321, 1328 (11th Cir. 2011). A triable issue of fact exists if
       the record, viewed in the light most favorable to the plaintiff, presents
       enough circumstantial evidence to raise a reasonable inference of

       3
        See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010).
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       intentional discrimination. See id. If the plaintiff presents enough
       circumstantial evidence to raise a reasonable inference of intentional
       discrimination, her claim will survive summary judgment. Id.

Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012).

       VOA essentially argues that King has failed to produce sufficient evidence

of a causal link between her termination and Stephenson’s discriminatory animus

because she has not produced evidence that Tucker, as the ultimate decision-

maker, was Stephenson’s “cat’s paw.” 4

       In Staub, the Supreme Court recently stated “that if a supervisor performs an

act motivated by . . . animus that is intended by the supervisor to cause an adverse

employment action, and if that act is a proximate cause of the ultimate employment

action, then the employer is liable.” __ U.S. at __, 131 S. Ct. at 1194 (footnote

omitted). The Court explained:

       Animus and responsibility for the adverse action can both be
       attributed to the earlier agent (here, Staub’s supervisors) if the adverse
       action is the intended consequence of that agent’s discriminatory
       conduct. So long as the agent intends, for discriminatory reasons, that
       the adverse action occur, he has the scienter required to be liable
       under USERRA. And it is axiomatic under tort law that the exercise
       of judgment by the decisionmaker does not prevent the earlier agent’s
       action (and hence the earlier agent’s discriminatory animus) from
       being the proximate cause of the harm.

       4
         King also argues that there is sufficient evidence that Stephenson, not Tucker, made the
decision to fire her. However, King has failed to produce any admissible evidence to support her
assertion. She simply states that she denies Tucker was the one who fired her and that she
believes Stephenson fired her. Such conclusory allegations are not sufficient to survive summary
judgment. See Holifield, 115 F.3d at 1564 n.6.
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Id. at __, 131 S. Ct. at 1192.

      Notably, the Court also held that an independent investigation by an

employer does not necessarily immunize the employer from liability. “[I]f the

employer’s investigation results in an adverse action for reasons unrelated to the

supervisor’s original biased action . . ., then the employer will not be liable.” Id. at

__, 131 S. Ct. at 1193. However, “the supervisor’s biased report may remain a

causal factor if the independent investigation takes it into account without

determining that the adverse action was, apart from the supervisor's

recommendation, entirely justified.” Id.

      We believe the evidence that Tucker was Stephenson’s cat’s paw is

sufficient under Staub to survive summary judgment. Stephenson’s statement to

Chandler that she would engineer King’s termination and her statement to King

that Tucker rubber-stamps her recommendations present strong circumstantial

evidence that she did in fact cause King’s termination. Furthermore, King

presented evidence that all of the written reprimands were signed by Stephenson

and some of them were not signed by anyone else, also possibly indicating

Stephenson was the motivating force behind them. Similarly, it is also alarming

that several of the reprimands cited in Tucker’s letter informing King of her

termination occurred only because of some act by Stephenson. That Bolden did
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some kind of investigation that upheld the validity of the reprimands we conclude

is not sufficient to negate the causal link between Stephenson’s animus and King’s

termination; Stephenson engineered at least some of the reprimands that were

ultimately the basis for King’s termination—the very definition of proximate

cause.

         Similarly, King has produced sufficient evidence to cast doubt on the

veracity of VOA’s stated reason for its decision—the reprimands. Again, the fact

that Stephenson stated she was going to get King fired for complaining, coupled

with her outrageous, daily statements derogating African-American employees,

creates a material dispute as to whether the stated reason, and not King’s race, was

the real reason for the termination.

         B. Retaliation Claim

         We next turn to King’s retaliation claim. Title VII prohibits retaliation

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

employment practice by [Title VII], or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing

under [Title VII].” 42 U.S.C. § 2000e–3(a). To establish a prima facie case of

retaliation under Title VII, King must show that: (1) she engaged in a statutorily

protected activity, (2) she suffered a materially adverse action, and (3) there is a

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causal connection between the protected activity and adverse action. See Hurlbert

v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). We

then employ the burden-shifting analysis of McDonnell Douglas to review King’s

claim of retaliation. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181–82

(11th Cir. 2010).

      No one disputes that King’s complaints were a statutorily protected activity

or that she suffered a materially adverse action when she was put on administrative

leave and subsequently fired. The parties do dispute, however, whether King has

produced evidence of a causal link between her complaints and her termination.

      She has. Again, the record indicates that the decision-maker, Stephenson,

stated she was engineering King’s termination in retaliation for King’s reporting

the harassment and discrimination. Just six weeks later, King was placed on

administrative leave. We conclude this evidence is all that is needed to survive

summary judgment.

      C. Hostile Work Environment Claim

      In order to prove a claim for racially hostile work environment, a plaintiff

must “demonstrate that the actions of the defendant[] altered the condition of the

workplace, creating an objectively abusive and hostile atmosphere.” Edwards v.

Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995). To establish a hostile

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work environment claim, King must demonstrate: (1) she belongs to a protected

class, (2) she was subject to unwelcome harassment, (3) the harassment

complained of was based on her race, (4) the harassment was sufficiently severe or

pervasive to alter the terms or conditions of employment, and (5) a basis for

holding VOA responsible. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1275 (11th Cir. 2002). The district court did not address the elements of the claim,

finding instead that even if King had established those elements, VOA had

established the Faragher/Ellerth defense and thus was entitled to summary

judgment.

      To establish the defense, VOA must demonstrate that: (1) it exercised

reasonable care to prevent and correct promptly any harassing behavior, and (2)

King unreasonably failed to take advantage of any preventative or corrective

opportunities provided by VOA to avoid harm. See Faragher v. City of Boca

Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998); Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998).

      King has presented evidence creating at least a genuine issue of material fact

about whether VOA exercised reasonable care to prevent and promptly correct any

harassing behavior. The record contains evidence that numerous VOA employees

complained to Tucker and human resources about the discrimination and

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harassment multiple times, and at no point did VOA conduct an investigation.

From that evidence, a reasonable jury could conclude that VOA did not have an

adequate system in place to prevent and correct hostile behavior.

      King has also presented evidence creating at least a genuine issue of material

fact about whether she acted reasonably with respect to her complaint to human

resources in August or September 2006. At this meeting, she told human resources

about the harassment. She asked repeatedly if and when she should file a written

complaint, and she was told repeatedly that it was unnecessary, that it would be

needed at a later time, or that Tucker had not yet been notified, and it was therefore

not yet the time to submit a complaint. Based on that evidence, though the formal

policy evidently required King to file a written complaint, she behaved reasonably

under the circumstances. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d

1305, 1314 (11th Cir. 2001) (stating that in some circumstances, an employee’s

noncompliance is reasonable and thus, the defendant will not be entitled to the

affirmative defense).

                                         IV.

      For the foregoing reasons, we reverse the district court’s grant of summary

judgment in favor of VOA and remand the case for further proceedings consistent

with this opinion.

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REVERSED AND REMANDED.




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