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[DO NOT PUBLISH]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: Case: 19-13044 Date Filed: 08/04/2020 Page: 2 of 16
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. 4 Case: 19-13044 Date Filed: 08/04/2020 Page: 5 of 16
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). 8 Case: 19-13044 Date Filed: 08/04/2020 Page: 9 of 16
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.