           Case: 19-13044   Date Filed: 08/04/2020   Page: 1 of 16



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13044
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:17-cv-00528-ALB-WC



H. RENEE JAMES,

                                                           Plaintiff–Appellant,

                                   versus

CITY OF MONTGOMERY,

                                                          Defendant–Appellee.

                       ________________________

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

                             (August 4, 2020)

Before WILSON, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Hortensia James, a former officer with the Montgomery, Alabama, Police

Department, brought the instant suit against the Department for workplace

discrimination and retaliation. James, an African-American female, raised claims

of race and sex discrimination and retaliation under 42 U.S.C. § 1981 and Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2, 2000e-3. The

district court granted the City of Montgomery summary judgment on James’s

claims. James appeals from this determination—and argues that the district court

improperly disregarded portions of her declaration. After carefully reviewing the

record, we affirm.

                                I. BACKGROUND

      A.     James’s Allegations

      While we write only for the benefit of the parties, we nonetheless set out the

facts insofar as they are relevant for understanding our opinion. Hortensia James,

an African-American female, worked as a police officer in the Robbery Bureau of

the Department. While working for the Department, she was repeatedly

disciplined for misconduct and was denied an opportunity to transfer to the

Homicide Bureau. She alleges that the punishments she received, along with the

denial of her transfer request, occurred because the Department was discriminating

against her on the basis of her sex and race.




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      We summarize James’s allegations as follows. In 2013, she received a 19-

day suspension after stopping a school bus to detain a minor who had hit her

daughter, while a white male officer in the Department received only a 3-day

suspension for using excessive force against a suspect and lying about it during the

subsequent investigation. Her requests to be transferred to the Homicide Bureau

from the Robbery Bureau were ignored, but a less qualified white male officer had

received training so that he could be moved to the Homicide Bureau once his

training was complaint. She complained to Deputy Chief Ron Cook about race

and sex discrimination in January 2015. Shortly thereafter, Sergeant Bruce

Thornell helped coach a citizen into filing a complaint against James, leading to

James confronting Thornell. At some point, Sergeant Hudson, James’s superior,

issued a written reprimand against James for not providing a doctor’s note for

missing work, a requirement not enforced against white detectives who called out

sick. The investigation of the citizen complaint and the confrontation with

Sergeant Thornell resulted in James’s suspension in 2015. A white male detective,

Corporal Schnupp, had similar confrontations with Sergeant Thornell without

being disciplined. Another white man, Detective Geier, received only a 3-day

suspension after cursing his supervisor.

      James was ultimately terminated from her position after sending an email to

the Department’s Chief of Police, Chief of Staff, and Chief of Operations that


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compared the Department to a small “Middle Eastern country” that was run like a

“dictatorship.” After the Department investigated the incident, James’s superior

recommended that she be terminated. Then-Mayor Todd Strange approved

James’s termination on November 21, 2017.

       B.     The Instant Lawsuit

       Prior to her termination, James filed the instant lawsuit against the City on

August 4, 2017. She amended her complaint following her termination in

February 2018. In relevant part, James raised retaliation and race and sex

discrimination claims against the City,1 based on the aforementioned allegations.

The City, in turn, moved for summary judgment. James offered her declaration as

her sole evidentiary support for the allegations in her complaint and in opposition

to the City’s motion for summary judgment.

       The district court granted the City’s motion for summary judgment. As a

preliminary matter, it found that James had failed to create a factual record on

which it could evaluate her claims, and that her declaration was full of

inconsistencies, speculation, ambiguities, and statements made without personal

knowledge. Accordingly, the district court disregarded “any improper statements”

in the declaration and considered the rest of it as needed. Ultimately, the district



1
       James dismissed with prejudice her claims against all other parties. She also dismissed
with prejudice her harassment claims against the City.
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court determined that James had not made out a prima facie case for either

discrimination or retaliation, and that James’s discrimination claims similarly

failed under a convincing-mosaic theory. James timely appealed.

                                 II. DISCUSSION

      We review de novo a district court’s grant of summary judgment,

“construing all facts and drawing all reasonable inferences in favor of the

nonmoving party.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 919 (11th Cir.

2018). Summary judgment is appropriate when the record evidence shows that

there is no genuine dispute as to any material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). Moreover, a non-moving

party cannot survive summary judgment by presenting “a mere scintilla of

evidence” and must instead present evidence from which a reasonable jury could

find in its favor. Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160,

1162 (11th Cir. 2006) (quotation marks omitted).

      The party moving for summary judgment bears the initial burden to identify

any portions of the pleadings, depositions, answers to interrogatories, and

affidavits demonstrating the absence of a genuine issue of material fact. Jones v.

UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). The burden then

shifts to the nonmoving party to rebut that showing by producing relevant and

admissible evidence beyond the pleadings. Id. The nonmoving party cannot


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satisfy its burden with evidence that is “merely colorable, or is not significantly

probative of a disputed fact.” Id. (quotation marks omitted).

      James’s appeal focuses on the alleged impropriety of the district court’s

grant of summary judgment to the City on her discrimination and retaliation

claims. We address each of these arguments in turn, but begin first with James’s

argument that the district court improperly disregarded parts of her declaration.

      A.     James’s Declaration

      A non-conclusory affidavit which complies with Federal Rule of Civil

Procedure 56, even if self-serving and uncorroborated, can create a genuine dispute

concerning an issue of material fact. United States v. Stein, 881 F.3d 853, 858-59

(11th Cir. 2018). Affidavits submitted in support of a summary judgment motion

must be based on personal knowledge, show that the affiant or declarant is

competent to testify, and set out facts that would be admissible under the Federal

Rules of Evidence. Fed. R. Civ. P. 56(c)(4). Conclusory allegations have no

probative value unless supported by specific facts. Leigh v. Warner Bros., Inc.,

212 F.3d 1210, 1217 (11th Cir. 2000).

      Here, the district court stated that it disregarded as conclusory her allegation

about white detectives not requiring doctor’s notes and that four white men had

transferred into the Homicide Bureau without letters of transfer; it disregarded her

allegation that a less qualified white man received additional training to join the


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Homicide Bureau as speculation not supported by the evidence. James argues that

the district court improperly disregarded these statements because they were

neither conclusory nor speculative.

      We conclude that the district court did not err in disregarding these

statements. Those statements were conclusory allegations that had no probative

effect because they were not based on specific facts. See Leigh, 212 F.3d at 1217.

She alleged that her 2015 written reprimand was retaliatory without identifying

times she had previously called in sick without being reprimanded or the white

officers who called in sick far more often or the circumstances under which they

called in sick. Her allegations regarding the Homicide Bureau were seemingly

contradictory, as she simultaneously alleged that she was provided no explanation

for her transfer being denied and that she was told that her transfer was denied

because of a letter-of-transfer policy. James provided no specific facts regarding

her denial of transfer, such as how many times she requested transfer, when she

requested transfer, and who made the decision to deny her request. Her allegations

that four white men had transferred to the Homicide Bureau without letters of

transfer or that a lesser qualified white male detective was receiving additional

training so he could join the Homicide Bureau were conclusory and not supported

by any evidence, and indeed, were in tension with her testimony that no one

transferred to the Homicide Bureau while she was working at the Robbery Bureau.


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On balance, we conclude that these statements were conclusory in nature and

therefore had no probative value; the district court properly disregarded them.

      B.       Race and Sex Discrimination Claims

      Title VII prohibits employers from discriminating against any individual

with respect to her compensation, terms, conditions, or privileges of employment

“because of” her race or sex. 42 U.S.C. § 2000e-2(a)(1). Section 1981 prohibits

“intentional race discrimination in the making and enforcement of public and

private contracts, including employment contracts.” Ferrill v. Parker Group, Inc.,

168 F.3d 468, 472 (11th Cir. 1999); 42 U.S.C. § 1981. The elements of race

discrimination claims under § 1981 and Title VII are the same and therefore need

not be analyzed separately. See Rice-Lamar v. City of Fort Lauderdale, 232 F.3d

836, 843 n.11 (11th Cir. 2000).

      Under the McDonnell-Douglas 2 burden-shifting framework, an employee

may establish a prima facie case of discrimination by showing that (1) she is a

member of a protected class; (2) she is qualified for the position; (3) she was

subject to an adverse employment action; and (4) the employer treated a similarly

situated employee outside of the protected class more favorably. Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011). When an

employee alleges that she was denied a different job in the same organization, she


      2
          McDonnell-Douglas v. Green, 411 U.S. 792 (1973).
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must establish that a reasonable person would prefer being transferred to the new

position for that denial to amount to an adverse employment action. Jefferson, 891

F.3d at 921. She may do so through evidence of improved wages, benefits, or

rank, as well as other serious and material changes in the terms, conditions, and

privileges of employment, such as the prestige of the position. Id.

      To the extent a plaintiff seeks to show disparate treatment of comparators of

a different race or sex, those individuals must be similarly situated. See Silvera v.

Orange Cty. School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). For comparators to

be similarly situated, they do not have to be “nearly identical,” but rather,

“similarly situated in all material respects.” Lewis v. City of Union City, Ga., 918

F.3d 1213, 1218 (11th Cir. 2019) (en banc). The meaningful comparator analysis

must be conducted at the prima facia stage of McDonnell-Douglas’s

burden-shifting framework and should not be moved to the pretext stage. Id.

Ordinarily, a similarly situated comparator will have engaged in the same basic

misconduct as the plaintiff, been under the same supervisor, and share the

plaintiff’s disciplinary history. See id. at 1228.

      Notwithstanding a plaintiff’s failure to establish a prima facie case of

discrimination under McDonnell-Douglas, she will always survive summary

judgment if she presents a convincing mosaic of circumstantial evidence that

creates a triable issue about the employer’s discriminatory intent. Smith, 644 F.3d


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at 1328. A plaintiff may establish a “convincing mosaic” “by evidence that

demonstrates, among other things, (1) suspicious timing, ambiguous statements . . .

, and other bits and pieces from which an inference of discriminatory intent might

be drawn, (2) systematically better treatment of similarly situated employees, and

(3) that the employer’s justification is pretextual.” Lewis v. City of Union City,

Ga., 934 F.3d 1169, 1185 (11th Cir. 2019) (Lewis II) (quotation marks omitted).

      James argues that she was subjected to race and sex-based discrimination for

(1) the denial of her transfer to the Homicide Bureau; and (2) the two instances of

discipline for alleged misconduct. With respect to the first allegation, James’s

specific argument is that the reason given by the City for denying her transfer—

that she was required to have a letter of transfer—was pretextual because that

policy did not apply to four white, male officers who transferred. James’s

argument is much the same with respect to the second allegation. Here, she argues

that Detective Hogan and Corporal Schnupp received lesser discipline for similar

actions, and that the difference can be explained because of discrimination on the

City’s part.

      We conclude that the district court correctly granted summary judgment for

the City as to James’s discrimination claims—both because James has failed to

make out a prima facie case for discrimination and because her claims fail under a

convincing-mosaic theory. James has conceded that her discrimination claims


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were predicated on three events—a denial of an internal transfer and two

disciplinary actions. Beginning with the prima facie case, James’s allegations of

discriminatory conduct are insufficient. With respect to her allegation regarding

the denied transfer, the district court concluded that James failed to demonstrate

that the transfer to the Homicide Bureau was an adverse employment action, but

that even if it was, James had failed to identify a valid comparator. Instead, the

allegation that she made—that other detectives transferred into the Bureau without

meeting the ostensible requirement of a letter of transfer—was conclusory and

made without direct personal knowledge. We cannot conclude that James’s vague

allegations of other, successful transfers is sufficient to create a valid comparator.

Moreover, James’s argument regarding pretext—that because other detectives

transferred without the letter, her denial was pretextual—necessarily depends upon

the existence of a valid comparator.

      James’s second set of allegations fails for much the same reason. She failed

to produce evidence showing that the alleged comparators, Hogan and Schnupp,

were similarly situated to her in all material respects. With respect to her 2013

suspension, the incidents that Hogan and James were disciplined for—Hogan for

using excessive force on a subject and James for stopping a school bus while off-

duty (and out of her jurisdiction) to arrest a student for fighting with her

daughter—were not materially similar. Moreover, she did not produce evidence


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showing that she and Hogan had a similar disciplinary history or were disciplined

by the same supervisor at the time that they were punished. See Lewis, 918 F.3d at

1228. As to her 2015 written reprimand issued by Sergeant Hudson, James

identified no individual as a comparator and instead relied on her conclusory

allegation that white detectives were not required to provide doctor’s notes when

they called out sick. Her argument that Schnupp was a valid comparator for how

Thornell treated her does not relate to any of the three instances of alleged

discrimination. In any event, James did not produce evidence showing that she and

Schnupp shared the same disciplinary history or were being disciplined for the

same conduct when Sergeant Thornell interacted with them. See id. Accordingly,

James failed to establish a prima facie case of race or sex discrimination under the

McDonnell-Douglas framework.

      We also conclude that James also failed to produce a convincing mosaic of

circumstantial evidence that created a triable issue about the City’s discriminatory

intent. James’s declaration—the only evidence on which she relied in opposing

summary judgment—did not allow for a reasonable inference of the City’s

discriminatory intent when considered with the rest of the undisputed facts.

Accordingly, we affirm the district court’s grant of summary judgment for the City

on James’s discrimination claims and now address her retaliation claims.




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      C.     Retaliation Claims

      Title VII protects an employee against retaliation by their employer because

the employee has (a) opposed any practice prohibited by Title VII or (b)

participated in any manner in any investigation, proceeding, or hearing under Title

VII. See 42 U.S.C. § 2000e-3(a); EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171,

1174 (11th Cir. 2000). While 42 U.S.C. § 1981 does not expressly protect

individuals from retaliation, it has been interpreted as doing so. See CBOCS W.,

Inc. v. Humphries, 553 U.S. 442, 451-52 (2008); Andrews v. Lakeshore Rehab.

Hosp., 140 F.3d 1405, 1412-13 (11th Cir. 1998). The elements of retaliation

claims under § 1981 and Title VII claims are the same and therefore need not be

analyzed separately. See Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212-13

(11th Cir. 2008).

      A retaliation claim based on circumstantial evidence is analyzed under the

McDonnell-Douglas burden-shifting framework. See Goldsmith v. City of Atmore,

996 F.2d 1155, 1162-63 (11th Cir. 1993). A prima facie case of retaliation under

Title VII requires the plaintiff to show that: (1) she engaged in a protected

activity; (2) she suffered an adverse employment action; and (3) there was a causal

relation between the two events. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1363 (11th Cir. 2007).




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      A causal link between protected expression and the materially adverse action

arises where the defendant was aware of the protected activity and took materially

adverse action as a result. Shannon v. BellSouth Telecomm., Inc., 292 F.3d 712,

716 (11th Cir. 2007). To establish causation, a plaintiff needs to show that the

decisionmaker actually knew about her protected expression. Martin v. Fin. Asset

Mgmt. Sys., Inc., 959 F.3d 1048 (11th Cir. 2020). Under a “cat’s paw” theory of

liability, the discriminatory animus of a non-decisionmaker can be imputed to a

neutral decisionmaker that acted as a mere conduit. Crawford v. Carroll, 529 F.3d

961, 979 n.21 (11th Cir. 2008).

      Causation must be established according to traditional principles of but-for

causation, which requires “proof that the desire to retaliate was the but-for cause of

the challenged . . . action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

339 (2013). Accordingly, a plaintiff is required to present at summary judgment

enough evidence from which a reasonable juror could find her protected activity

was a but-for cause of the adverse employment action. See Knox v. Roper Pump

Co., 957 F.3d 1237, 1245 (11th Cir. 2020). Causation may be inferred by close

temporal proximity between the protected activity and the adverse employment

action. Thomas, 506 F.3d at 1364. A three- to four-month period between the

protected activity and adverse employment action is not sufficient. Id.




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      Here, we conclude that the district court correctly granted summary

judgment for the City on James’s retaliation claims—predicated on three

disciplinary actions, including her employment termination—because she did not

produce evidence creating a genuine issue of material fact as to whether there was

a causal connection between her statutorily protected activity and adverse

employment actions. James did not produce evidence showing that the

decisionmakers of the first two disciplinary actions knew of her protected activity.

While it is undisputed that the final decisionmaker behind James’s employment

termination (the Mayor) knew of her protected activity (the filing of the instant

lawsuit), James did not produce evidence that would allow a reasonable juror to

conclude that her protected activity, which occurred almost four months before the

termination, was the but-for cause of it. Her termination was the culmination of

the Department’s progressive-discipline policy. She was already at the last step

before termination when she sent an email to the Chief of Police (and others in

higher management) asserting that the Department was run like a Middle Eastern

dictatorship. An official investigation ensued. It was determined that this

Category B major violation (insubordination) had been preceded by two previous

Category B major violations, a circumstance which had resulted in termination in

the past. Based on the recommendation of the investigation, the Mayor terminated

James’s employment.


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      Assuming, arguendo, but not deciding, that retaliation claims can survive

summary judgment under a convincing-mosaic theory, her declaration—the only

evidence on which she relied—did not create a convincing mosaic of

circumstantial evidence that created a triable issue about the City’s retaliatory

intent. Accordingly, we affirm the district court’s grant of summary judgment for

the City on James’s retaliation claims.

                                 III. CONCLUSION

      For the foregoing reasons, we conclude that the district court properly

granted the City of Montgomery summary judgment on James’s discrimination and

retaliation claims. The district court’s order is

      AFFIRMED.




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