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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11536 Non-Argument Calendar ________________________
D.C. Docket No. 2:15-cv-02311-JHE
CABREL JACOMB,
Plaintiff-Appellant,
versus
BBVA COMPASS BANK,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(November 4, 2019)
Before MARTIN, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-11536 Date Filed: 11/04/2019 Page: 2 of 17
Cabrel Jacomb appeals the grant of summary judgment in favor of BBVA
Compass Bank on her claims of retaliation under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-3(a), and 42 U.S.C. § 1981. Jacomb alleges that
BBVA retaliated against her by reducing her bonus pay and terminating her
employment because she filed a discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”). The district court concluded that even if
Jacomb established a prima facie case of retaliation, a reasonable jury could not
find that BBVA’s proffered explanations for its actions were pretextual. We
affirm.
I. BACKGROUND
Although we write for the parties, we set out the timeline in some detail
because Jacomb’s claims rest in part on the timing of BBVA’s actions. And
because this case is at the summary judgment stage, we view the facts in the light
most favorable to Jacomb. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234
(11th Cir. 2010). In August 2010, Jacomb, who is African American, was hired as
a Senior IT Project Manager in the Technology and Support Services (“TeSS”)
division of BBVA. In March 2013, Kristin Julbert, one of Jacomb’s supervisors,
issued her 2012–2013 performance evaluation. Julbert rated Jacomb’s
performance effectiveness as “below” expectations, her commitment as “good,”
her teamwork as “expected,” and her performance overall as “expected.” The
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evaluation noted that while Jacomb exhibited “expected attributes in the area of
teamwork,” her frequent absences caused her “peers [to] feel as though she is not
carrying her share of the project load.”
In July 2013, Jacomb had a new supervisor, Angela Simmons, who
conducted Jacomb’s 2013 performance review and bonus evaluation. Simmons
reported directly to Kevin McMahon. Jacomb’s 2013 performance review
reflected that she met expectations in all areas except for two: an area labeled “one
team” and implementation of the picture bill pay pilot project by the deadline.
This performance review was used by BBVA to calculate Jacomb’s performance
“score,” which, along with the bank’s overall performance score, determined her
eligibility for the bank’s AIM bonus. Because Jacomb’s performance evaluation
lowered her performance score, and because the bank’s performance decreased,
Jacomb’s AIM bonus was lower than usual. Once the bonus was calculated,
Simmons presented Jacomb with her evaluation and bonus review. After several
months of reporting directly to Simmons, Jacomb began reporting to Michael Dale,
who in turn reported to Simmons.
On September 24, 2013, Jacomb filed an EEOC charge against BBVA
alleging racial discrimination based on harassment by her supervisors, Julbert and
Jillian Henning. In that charge, she claimed that Julbert spoke to her “in a harsh
and demeaning manner,” gave her “unjustified write-ups,” harassed her about
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taking sick leave, and gave her a negative evaluation that caused her to receive a
lower raise and bonus than she was due. She also claimed that Henning harassed
her by threatening to “kick [her] ass.”
On January 16, 2014, Jacomb was transferred from the TeSS Division to the
Digital Banking Division, which had been recently created out of the TeSS
Division. The decision to transfer Jacomb was made no later than December 5,
2013. On February 28, 2014, Jacomb complained to BBVA that her AIM bonus
had been unfairly low in retaliation her filing an EEOC charge. On March 25,
2014, Jacomb filed an amended EEOC charge, which added a claim of retaliation
for filing her initial EEOC charge based on her evaluation and bonus. In the
EEOC charge Jacomb stated that during the bonus evaluation meeting, Simmons
remarked that Jacomb was not a “team player,” which she believed was a reference
to her pending EEOC charge.
On September 5, 2014, Jacomb was informed by Crystal Berryhill in the
Human Resources department that her bonus was being adjusted based on the
internal complaint she filed in order to give her full credit for her individual
performance. Berryhill’s email stated that the adjustment assumed that she had
received full points for teamwork and timely implementation of the bill pay pilot
program. Berryhill also explained that Jacomb’s bonus was being adjusted
because her supervisors could have better explained their expectations in those two
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areas. The email noted that Jacomb’s bonus was still lower than it had been in
previous years because of the bank’s overall performance.
In the spring of 2014, BBVA began implementing a project known as the
USA Staffing Plan, which was intended to identify and alleviate redundancies and
inefficiencies throughout the company. As part of the Plan, each division was
tasked with reducing its total costs by at least 30%. The organizational baseline
used to identify positions subject to the Staffing Plan was conducted in “December
2013/January 2014.” The decision to eliminate Jacomb’s position and terminate
her employment was made on May 28, 2014, published on June 4, 2014, and
became effective on September 25, 2014. Jacomb maintains that she was laid off
because she filed an EEOC charge and an amended EEOC charge against BBVA.
BBVA asserts that her position was instead eliminated as part of the USA Staffing
Plan.
On February 20, 2015, Jacomb filed a second amended EEOC charge,
alleging that BBVA terminated her employment because of her first EEOC charge.
Thereafter, Jacomb filed this action in the district court on December 22, 2015,
alleging in relevant part that BBVA had unlawfully retaliated against her by
reducing her bonus and terminating her employment in violation of 42 U.S.C.
§ 2000e-3(a) and 42 U.S.C. § 1981. Both Jacomb and BBVA consented to having
the case decided by a United States Magistrate Judge. The magistrate judge
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granted summary judgment in favor of BBVA on all claims. Jacomb timely
appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment. Goodman
v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013). We will affirm “if we
conclude that there is no genuine issue of material fact—that is, if no ‘fair-minded
jury could return a verdict for the plaintiff on the evidence presented.’” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
III. DISCUSSION
Title VII prohibits an employer from discriminating against an employee
because she “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), including the filing of a charge of discrimination with the EEOC. 42 U.S.C.
§ 1981 prohibits discrimination in the making of contracts on the basis of race.
“Title VII and § 1981 have the same requirements of proof and present the same
analytical framework.” Springer v. Convergys Customer Mgmt. Grp. Inc., 509
F.3d 1344, 1347 n.1 (11th Cir. 2007).
The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-
shifting framework applies to Title VII retaliation cases, see Brown v. Ala. Dep’t
of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010), and therefore to § 1981 cases.
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Under that framework, the employee must first establish a prima facie case of
retaliation by showing that “‘(1) [s]he engaged in a statutorily protected activity;
(2) [s]he suffered an adverse employment action; and (3) [s]he established a causal
link between the protected activity and the adverse action.’” Id. (quoting Bryant v.
Jones, 575 F.3d 1281, 1307 (11th Cir. 2009)). If the employee meets this burden,
the burden of production shifts to the employer to articulate a legitimate, non-
retaliatory reason for the adverse employment action. Id. If the defendant carries
this burden, the employee must demonstrate that the employer’s reason was merely
pretext for retaliation. Id. at 1181–82.
Protected activity under Title VII includes “proceedings and activities which
occur in conjunction with or after the filing of a formal charge with the EEOC.”
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). A
materially adverse action in the context of a Title VII retaliation claim includes any
action that would have “dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir.
2008) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67
(2006)).
To show a causal link between the protected activity and the adverse
employment action, the plaintiff need show only that the two “were not wholly
unrelated.” Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999)
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(quoting Simmons v. Camden Cty. Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.
1985)). At a minimum, the plaintiff must show that the employer was aware that
she engaged in protected activity at the time it exercised the adverse employment
action. Id. Causation may also be inferred from the closeness in time between the
protected activity and adverse employment action. Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). But “mere temporal proximity,
without more, must be ‘very close.’” Id. (quoting Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001)). Events that have taken place more than three months
apart are not considered “very close.” Id.
A. Termination of Employment.
Jacomb and BBVA agree that Jacomb’s EEOC charge and amended EEOC
charge qualify as protected conduct and that she suffered an adverse employment
action in the termination of her employment. Accordingly, the only contested
element of Jacomb’s prima facie case is whether Jacomb established a causal link
between her EEOC charge—or amended EEOC charge—and the termination of
her employment.
Jacomb argues that she established causation based on the temporal
proximity between her amended EEOC charge and the decision to terminate her
employment, which occurred about two months apart. Although this Court has
held in a published opinion that a three-month gap is not considered “very close”
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such that temporal proximity alone is sufficient, Cooper Lighting, 506 F.3d at
1364, our case law addressing causation between events that are two months apart
consists solely of unpublished opinions with mixed outcomes. Compare Embry v.
Callahan Eye Foundation Hospital, 147 F. App’x 819, 831–32 (11th Cir. 2005)
(assuming without deciding that two months satisfied the causal connection
requirement) with Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 229–30 (11th
Cir. 2011) (concluding that a two-month gap is not “very close”).
Jacomb argues that in any event she has presented more than temporal
proximity because she showed that her indirect supervisor, McMahon, who was
involved in the decision to eliminate her position, knew of her EEOC charge. An
employee can establish causation by showing “that the decision maker was aware
of the protected conduct at the time of the adverse employment action.” Brungart
v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). An
employer’s awareness of an employee’s protected activity may be shown by
circumstantial evidence. See Clover, 176 F.3d at 1354. It is undisputed that
McMahon was involved in the decision to eliminate Jacomb’s position, but the
parties disagree about whether the record supports an inference that McMahon
knew about Jacomb’s EEOC charge. Jacomb argues that because McMahon was a
division manager and supervisor three levels above her, it is reasonable to infer
that McMahon knew about the EEOC charge. The district court agreed with this
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rationale even though it did not ultimately decide the causation issue. We think
that it is plausible that a relatively high-level manager would know about an EEOC
charge filed by one of the employees he supervises and assume arguendo that
Jacomb has presented a prima-facie case of retaliation.
Accordingly, the burden shifts to BBVA to provide a non-retaliatory reason
for its employment action. BBVA maintains that Jacomb’s position was
eliminated as part of its USA Staffing Plan, and that Jacomb’s position was
eliminated because of its duties and responsibilities regardless of the division in
which it was located. That is a legitimate, non-retaliatory reason for the adverse
employment action; therefore, the burden then shifts back to Jacomb to offer
evidence that BBVA’s explanation was merely pretext and that retaliation was the
real reason for terminating her position with BBVA. This she fails to do.
To show pretext, an employee must demonstrate “such weaknesses,
implausibilities, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008)
(quoting Cooper Lighting, 390 F.3d at 725). In addition to showing that the
employer’s proffered reason is false, the employee must also show that
discrimination was the real reason for the adverse employment action. See Brooks
v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 11263 (11th Cir. 2006). Jacomb
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argues that three pieces of evidence together establish that the USA Staffing Plan
was pretext and that retaliation was the real reason for her termination: (1) the
timeline of events, (2) Simmons’s remark that Jacomb was not a “team player,”
and (3) McMahon’s statements that he did not know why she had been selected for
termination and that he thought her performance had been satisfactory. We
address each in turn, keeping in mind that Jacomb argues that while any individual
piece of evidence may be insufficient, the evidence cumulatively supports an
inference of pretext.
First, Jacomb argues that the timeline of events undermines BBVA’s
proffered reasons for her termination. To properly address this argument, we
briefly review the timeline. Jacomb filed her initial EEOC charge on September
24, 2013. She was transferred out of the TeSS division into the Digital Banking
Division on January 16, 2014. She made an internal complaint of retaliation on
February 28, 2014. She then filed her amended charge of discrimination on March
25, 2014. The decision to eliminate Jacomb’s position at BBVA was made on
May 28, 2018, and the decision was published on June 4, 2014. Jacomb argues
that the fact that the decision to transfer her to the Digital Banking Division was
made in early December and the USA Staffing Plan footprint was made in
December 2013 or January 2014 undermines BBVA’s assertion that her position
was eliminated as part of the USA Staffing Plan. However, Jacomb was still in the
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TeSS Division nearly the entire time that the assessment was made. Further,
BBVA has explained that Jacomb’s position was eliminated because of its duties
and responsibilities rather than its position in the organizational charge, and
Jacomb has not rebutted that assertion, 1 and her basic duties remained unchanged
notwithstanding the transfer.
Jacomb also argues the fact that she was the only person from the Digital
Banking Division whose employment was terminated as part of the USA Staffing
Plan undermines BBVA’s story. For the proposition that she was the only Digital
Banking Division employee laid off, Jacomb cites an August 4, 2014 email that
lists Jacomb and three other employees as “displacements” of the USA Staffing
Plan under the heading “D&D.” The email then lists a number of other individuals
under the heading “IT.” But this email does not show that Jacomb was the only
person from the Digital Banking Division discharged as part of the Staffing Plan—
if anything, it shows that she was not the only employee from her division who
was laid off as part of the USA Staffing Plan. But even if Jacomb could establish
that she was the only employee in the Digital Banking Division who was laid off,
1 Jacomb also argues that the fact that the decision to eliminate her position was not made until May or June 2014 casts doubt on BBVA’s explanation that it considered the December/January footprint in making its decision. But we do not accept Jacomb’s speculation that it would be unreasonable for it to take a few months for BBVA to implement the footprint and decide which positions to eliminate. Moreover, the timing of Jacomb’s departure, around September or October 2014, is consistent with that of the other employees who were laid off as part of the USA Staffing Plan. 12 Case: 18-11536 Date Filed: 11/04/2019 Page: 13 of 17
Jacomb has not rebutted BBVA’s explanation that her position was eliminated
because of its duties and responsibilities rather than the division in which it was
located. She has not provided evidence showing, for example, that her job duties
or responsibilities changed when she changed divisions or that she was the only
employee performing those duties who was laid off.
Second, Jacomb argues that a reasonable inference of pretext can be drawn
from Simmons’s comment that she was not a “team player” because the remark
was a reference to her EEOC charge. As an initial matter, there is no evidence that
Simmons knew about Jacomb’s EEOC charge. But in any event, Jacomb’s
argument is contradicted by her 2012–2013 performance evaluation—which was
made before Jacomb’s EEOC charge—and her 2013 AIM bonus evaluation, thus
showing that her supervisors, Julbert and Simmons, both felt she had problems
with teamwork. In the 2012–2013 evaluation, Julbert rated Jacomb as meeting
expectations in the area of teamwork but also noted that her repeated absences
from work interfered with her ability to work as part of a team. Simmons’
evaluation went further and found that Jacomb did not meet expectations in an area
labeled “one team.” Therefore, the record supports only the conclusion that
Simmons’s remark reflected her own view—which was shared by Julbert—that
Jacomb’s performance was lacking in the area of teamwork. But even if Jacomb
could show that the remark was a reference to Jacomb’s EEOC charge, there is no
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evidence that Simmons was involved in the decision to eliminate Jacomb’s
position. Accordinly, Jacomb’s argument does not effectively disprove BBVA’s
assertion that her position was eliminated as part of the USA Staffing Plan.
Third, Jacomb argues that she established the requisite pretext because
McMahon untruthfully told her that he did not know why her employment was
terminated and that he said that he thought her performance was satisfactory. But
this argument is seemingly predicated on a case of mistaken identity. In her
deposition, Jacomb stated that she did not recall having that conversation with
McMahon, but instead had it with Michael Dale. Dale was the one who told
Jacomb that he did not know why her employment was terminated and that he
thought her performance was satisfactory. In any event, statements that there were
no problems with Jacomb’s performance do not undermine, and are in fact
consistent with, BBVA’s explanation that Jacomb’s position was eliminated as part
of the USA Staffing Plan.
Ultimately, we conclude that the district court did not err in granting
summary judgment to BBVA on Jacomb’s retaliation claim based on her
discharge. The evidence of causation is, at most, tenuous. But even assuming
Jacomb could make a prima facie case, we conclude that no reasonable jury could
find that BBVA’s proffered reason for terminating Jacomb’s employment was
pretext.
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B. Reduced Bonus.
As noted earlier, it is undisputed that Jacomb engaged in protected conduct
when filing her EEOC charge and amended EEOC charge. But BBVA contends
that Jacomb did not suffer an adverse employment action in the form of her lower
bonus because the bonus was eventually adjusted to the amount it would have been
absent her lower individual performance score. That argument is foreclosed by
this Court’s precedent holding that the denial of a merit pay increase is an adverse
employment action even if the pay increase is later awarded retroactively, because
the employee has been deprived of the value and use of the money in the interim.
See Crawford, 529 F.3d at 973.
Jacomb argues that three pieces of evidence establish both causation and
pretext with respect to her AIM bonus: (1) Simmons’s “team player” comment, (2)
the fact that BBVA later increased her bonus, and (3) the fact that her bonus
remained lower than in previous years. We determine that no reasonable jury
could conclude those facts establish either causation or pretext. 2
First, Jacomb argues that Simmons’s “team player” comment was a
reference to her EEOC charge, and therefore, establishes causation and pretext.
2 Because this Court has held that a three-month gap, which was the gap between Jacomb’s September EEOC charge and the December decision regarding her bonus, cannot establish causation standing alone, Jacomb must present evidence other than temporal proximity in order to establish causation. See Cooper Lighting, 506 F.3d at 1364. 15 Case: 18-11536 Date Filed: 11/04/2019 Page: 16 of 17
But, as already discussed, there is no evidence from which a jury could infer that
Simmons’s remark was a reference to the EEOC charge. Moreover, there is
evidence contradicting such an inference—namely, Simmons’ and Julbert’s
performance evaluations.
Second, Jacomb argues that the fact that BBVA later adjusted her bonus
shows that the original bonus reduction was retaliatory. At the time that BBVA
adjusted her bonus, it explained that it was doing so because her supervisors could
have better explained their expectations for her performance. Jacomb provides no
rebuttal to that explanation. 3 Third, Jacomb implies that because her bonus
remained lower than it had been in previous years even after the adjustment, the
reduction must have been retaliatory. But BBVA explained that her bonus was
lower due to the overall performance of the bank, and Jacomb has not presented
evidence to the contrary.
Even if Jacomb could establish a prima facie case of retaliation, a reasonable
jury could not conclude that BBVA’s proffered reasons for Jacomb’s reduced
bonus and her discharge were pretext for retaliation. Accordingly, the district
court did not err in granting summary judgment to BBVA.
IV. CONCLUSION
3 We are troubled by the consequences of accepting Jacomb’s argument that the mere fact of the bonus adjustment establishes retaliation—if we embraced that rationale, it would almost certainly discourage employers from communicating about and correcting genuine mistakes. 16 Case: 18-11536 Date Filed: 11/04/2019 Page: 17 of 17
The judgment of the district court is AFFIRMED.