Case: 17-14867 Date Filed: 10/10/2018 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14867 Non-Argument Calendar ________________________
D.C. Docket No. 7:15-cv-00138-HL
JOHN LEWIS HOGAN, III,
Plaintiff-Appellant,
versus
SOUTH GEORGIA MEDICAL CENTER,
Defendant,
HOSPITAL AUTHORITY OF VALDOSTA AND LOWNDES COUNTY, GEORGIA, d.b.a. South Georgia Medical Center,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
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Before ED CARNES, Chief Judge, MARCUS, and HULL, Circuit Judges.
PER CURIAM:
John Hogan, III, sued his former employer, the Hospital Authority of
Valdosta and Lowndes County, Georgia, under Title VII of the Civil Rights Act
and 42 U.S.C. §§ 1981 and 1983. He claims that the hospital discriminated and
retaliated against him because he is black. The district court granted the hospital’s
motion for summary judgment, and Hogan appeals.
I.
Hogan worked for the hospital as a dialysis technician from September 2011
to July 2013.1 He was the only hospital employee in the dialysis department.
Everyone else working in that department was employed by South Georgia Acute
Dialysis (SGAD), a company the hospital hired to run and staff the department.
Those employees reported to Dr. Arunas Urbonas, SGAD’s owner, while Hogan
reported to a nurse manager for the hospital. But Hogan worked closely with
Urbonas and the SGAD nurses, and they determined when Hogan was to report to
work each day based on the number of patients needing dialysis treatment.
Urbonas or one of the SGAD nurses would text Hogan the day’s treatment
schedule, and Hogan was to arrive in time to clean and prepare the dialysis
1 Hogan began working for Smith Northview Hospital in 2007. In 2011 the Hospital Authority acquired Smith Northview Hospital and re-hired Hogan that September to continue working in the dialysis department. For ease of reference, when we refer to the “hospital,” we mean the hospital as managed and operated by the Hospital Authority. 2 Case: 17-14867 Date Filed: 10/10/2018 Page: 3 of 14
machines before the patients came. Hogan was also responsible for assisting the
nurses in monitoring the patients during treatment and disinfecting the machines
and water systems after each session. The hospital required Hogan to keep a log
book documenting each time he cleaned the machines. It also required him to
maintain his CPR certification and undergo yearly training.
When the hospital hired Hogan in September 2011, it paid him an hourly
wage of $10.06. Hogan complained about his pay and learned that the human
resources department did not have a copy of his dialysis technician certification;
when he provided it, the hospital raised his pay to $11.07 per hour. In March 2012
the hospital gave Hogan an annual pay raise, increasing his pay to $11.29 per hour.
And the hospital paid him $4.00/hour for the time he was on call, though Hogan
says that his on-call hours were more limited than those of other employees. 2
In addition to his work at the hospital, Hogan also owned and operated a taxicab
business, which the hospital did not object to so long as it did not interfere with his
work at the hospital.
In January 2013 the nurse manager of Hogan’s department left. He had
managed the dialysis department and the spine clinic and served as Hogan’s direct
supervisor. Hogan wanted to apply for the job, but the hospital did not post the
2 In his brief before this Court Hogan repeats the allegation from his Amended Complaint that his on-call wage was $2.00 per hour, but the undisputed evidence shows that Hogan’s pay was raised to $4.00 per hour when the Hospital Authority acquired Smith Northview Hospital in 2011. 3 Case: 17-14867 Date Filed: 10/10/2018 Page: 4 of 14
position as vacant. And when Hogan expressed interest to the departing nurse
manager and Urbonas, they told him that there was not an open position. Instead,
the hospital reassigned management of the dialysis department to Darlene
Williams, the assistant chief nursing officer who also managed (and continued to
manage) the medical-surgical department. She is white. According to Hogan the
administrative changeover prevented him from receiving an annual pay raise
because it delayed his evaluation.
A few months after Williams began managing the dialysis department,
Hogan complained to Leonard Carter, a manager at the hospital, that one of the
SGAD nurses, Lisa McCutchin, was receiving training necessary for advancement
but he was not. He also told McCutchin’s supervisor, Urbona; his own supervisor,
Williams; and the hospital’s risk management officer, Earl Boyett, that he did not
think McCutchin was performing her job correctly.
While all of this was going on, Hogan’s own relationships with Urbona and
Williams were breaking down. Williams noted that Hogan was often on his phone
at work, and McCutchin told Williams that Hogan was running his taxicab
business while on duty at the dialysis clinic. The director of human resources
spoke with Hogan multiple times about various problems in his job performance.
And when Hogan went to Williams to discuss McCutchin, Williams turned the
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conversation back to Hogan’s own performance. Hogan says he told Urbona and
Boyett that the hospital was discriminating against him.
Things came to a head on May 10, 2013. Hogan showed up late for work
when a patient was scheduled for dialysis, and Williams observed Hogan using his
cell phone in front of patients. She issued a disciplinary action report, suspended
Hogan for three days without pay, and instructed him to report to work each day by
8:30 a.m. Four days later she reported to the risk management department that
Hogan had reported cleaning the machines on certain days when he had not
actually done so. Observers conducting a mock Joint Commission survey at the
hospital later that month noted the same thing. Those observers also saw Hogan
making personal calls at work and failing to follow the hospital’s guidelines on
infection prevention. And they learned that Hogan’s CPR certification had lapsed.
Williams gave Hogan a negative performance review on June 5, 2013, and
the hospital placed him on a performance improvement plan. Among other things
the plan required Hogan to report to work by 8:00 a.m. each day, refrain from
using his cell phone at work, and document his cleaning and testing of the
machines each day instead of filling in the logs by memory at the end of the week.
The next month the hospital determined that Hogan’s performance had not
improved and terminated his employment. The hospital hired a new dialysis
technician, a black woman, to replace Hogan.
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Hogan sued the hospital, asserting claims for race discrimination and
retaliation under Title VII of the Civil Rights Act and 42 U.S.C. §§ 1981 and 1983.
He claimed that the hospital discriminated against him based on his race by (1)
failing to promote him to manager of the dialysis department; (2) not providing
him with additional training opportunities; (3) limiting the number of on-call hours
he could get paid for; (4) suspending his employment; (5) placing him on a
performance improvement plan; (6) terminating his employment; and (7)
retaliating against him for complaining about discrimination. After discovery the
district court granted summary judgment to the hospital on all of these claims. 3
II.
We review de novo a district court’s grant of summary judgment and draw
all reasonable inferences and review all evidence in the light most favorable to the
non-moving party. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,
1318 (11th Cir. 2012). Summary judgment is appropriate if “there is no genuine
issue as to any material fact and the moving party is entitled to a judgment as a
matter of law.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225 (11th Cir.
2005) (quotation marks omitted).
3 Hogan also brought claims under state law, but they were dismissed by the district court under Federal Rule of Civil Procedure 12(b)(6). The district court also granted summary judgment to the hospital on a hostile work environment claim Hogan attempted to raise in his response brief to the hospital’s motion for summary judgment. Hogan does not seek relief from either ruling, and we do not address the claims because “[i]ssues not raised on appeal are considered abandoned.” AT&T Broadband v. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004). 6 Case: 17-14867 Date Filed: 10/10/2018 Page: 7 of 14
Hogan challenges the district court’s treatment of his response to the
hospital’s statement of material facts, which the hospital had submitted under a
local rule as part of its motion for summary judgment. The local rule also required
Hogan to respond to “each of the movant’s numbered material facts” that he
disputed. M.D. Ga. L.R. 56. Despite this, Hogan did not respond to the hospital’s
numbered material facts and instead submitted a short statement arguing his
version of the facts and raising hypothetical questions about those presented by the
hospital. Because Hogan did not comply with the rule the district court deemed the
hospital’s facts admitted and viewed its motion for summary judgment as
functionally unopposed.
Hogan now claims that the district court’s decision amounts to error because
his response “did refer to citations in the record where genuine issues of material
issues of fact existed and it would be inappropriate to deem these responses
argumentative and hypothetical.” This passing argument is not enough to preserve
the issue on appeal. See Keister v. Bell, 879 F.3d 1282, 1287 n.2 (11th Cir. 2018).
And even if it were, we give “great deference to a district court’s interpretation of
its local rules” and review only for an abuse of discretion. Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1302–03 (11th Cir. 2009). To meet this standard, Hogan
bears the burden of showing that the “district court made a clear error of
judgment,” which his fleeting remark does not do. Id. at 1302–03.
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Like the district court, then, we consider the hospital’s motion as “the
functional analog of an unopposed motion for summary judgment.” Id. at 1303
(quotation marks omitted). Even with an unopposed motion, we “must still review
the movant’s citations to the record to determine if there is, indeed, no genuine
issue of material fact.” Id. The hospital is “not absolved of the burden of showing
that it is entitled to judgment as a matter of law.” Id.
III.
Hogan challenges the district court’s grant of summary judgment on his race
discrimination claims and his retaliation claim. We consider each in turn.
A.
Because Hogan alleged only circumstantial evidence of race discrimination,
the district court analyzed his claims under the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817 (1973), and we will do the same. Under that framework Hogan
must show that (1) he is a member of a protected class; (2) he was subjected to an
adverse employment action; (3) his employer treated similarly situated employees
outside of his class more favorably; and (4) he was qualified to do the job.
McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). If he can satisfy these
elements, the hospital must provide a “legitimate, nondiscriminatory reason” for its
action. Id. And if that burden is met, Hogan must then show that the hospital’s
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reasons are a pretext for unlawful discrimination. Id. The elements of §§ 1981 and
1983 claims in the employment context are the same as the elements of a Title VII
claim, so we will consider them together. Rice-Lamar v. City of Fort Lauderdale,
232 F.3d 836, 843 n.11 (11th Cir. 2000).
None of Hogan’s claims succeed under this framework. First, his claim that
the hospital discriminated against him by not promoting him to nurse manager of
the dialysis department fails because he has not shown that the job existed once his
original supervisor left or that he was qualified for it if it did continue to exist. See
Walker v. Mortham, 158 F.3d 1177, 1191–92 (11th Cir. 1998) (explaining that a
plaintiff bringing a failure-to-promote claim must show that “[he] applied for and
was qualified for an available position, that [he] was rejected, and that after [he]
was rejected [the employer] either continued to seek applicants for the position,
or . . . filled the position with a[n] [employee outside the plaintiff’s protected
class]”) (quotation marks omitted). The hospital presented evidence that it simply
added the administrative responsibility to Williams’ existing duties and that the
position held by Williams required a bachelor’s degree in nursing, a master’s
degree in nursing, four years of experience in nursing, and four years of
supervisory experience. Hogan had none of those qualifications.
Second, Hogan’s failure-to-train claim fails because he has not shown how
the hospital’s failure to provide Hogan with the same training that McCutchin
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received constitutes an adverse employment action. “[N]ot all conduct by an
employer negatively affecting an employee constitutes adverse employment
action.” Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001).
Instead, “an employee must show a serious and material change in the terms,
conditions, or privileges of employment.” Id. at 1239. Hogan has provided no
evidence that the terms of his employment were affected by not being able to
attend the training alongside McCutchin. Nor is McCutchin a similarly situated
comparator to begin with: She was a nurse working for a contractor of the hospital
while Hogan was a dialysis technician working for the hospital directly. “As such,
[McCutchin] and [Hogan] were dissimilar in several critical respects, and were a
far cry from being nearly identical.” Trask v. Sec’y, Dep’t of Veterans Affairs,
822 F.3d 1179, 1193 (11th Cir. 2016) (quotation marks omitted).
Third, Hogan has not identified a similarly situated comparator for his
compensation-related claims, so they also fail. While he alleges that the hospital
restricted his on-call hours “to prevent the payment of on call wages when he was
in fact on call at times and did not receive on call pay” like some employees who
were white, this general allegation does not suffice to survive summary judgment.
Hogan was the only hospital employee working in the dialysis department, and he
has not shown that the employees outside his department were similarly situated to
him. See id.
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Fourth, as for his allegation that the delay in his initial pay raise and the
delay in his final evaluation were based on his race, Hogan once again fails to
identify a similarly situated employee whose certification was recognized any
faster or whose 2013 evaluation came any sooner. And even if he had, the hospital
has presented undisputed evidence showing that as soon as the HR department had
Hogan’s technician certification in hand it gave him the raise and that Hogan’s
final evaluation fell within the timeframe allowed by the hospital’s employee
guidelines. Hogan has not shown that these race-neutral explanations were pretext
for race discrimination.
Fifth, Hogan claims that his three-day suspension and his placement on a
performance improvement plan were based on his race. Suspension without pay is
unquestionably an adverse employment action, see Akins v. Fulton Cty., 420 F.3d
1293, 1301–02 (11th Cir. 2005), and we will assume that placement on the
performance improvement plan is, too. But even if both events constitute adverse
employment actions, Hogan has not shown either “(a) that he did not violate the
work rule, or (b) that he engaged in misconduct similar to that of a person outside
the protected class, and that the disciplinary measures enforced against him were
more severe than those enforced against the other persons who engaged in similar
misconduct.” Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). It is
undisputed that Hogan arrived late for work on May 10 when he received the
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suspension and that his performance review on June 5 was overwhelmingly
negative and resulted in his placement on the improvement plan. Though Hogan
questions in his brief why these disciplinary actions occurred, the hospital
presented evidence of what the relevant work rules were and how Hogan violated
them. Given the district court’s ruling that the hospital’s motion for summary
judgment was functionally unopposed, this undisputed evidence was enough to
show that the hospital was entitled to judgment as a matter of law on this issue.
See Mann, 588 F.3d at 1302–03.
Sixth, the district court properly granted summary judgment on Hogan’s
termination claim. To make out a prima facie case of discriminatory discharge,
Hogan must show, among other things, that “he was replaced by someone outside
of his protected class or received less favorable treatment than a similarly situated
person outside of his protected class.” Flowers v. Troup Cty., Ga., Sch. Dist., 803
F.3d 1327, 1336 (11th Cir. 2015). But Hogan has not identified a similarly
situated employee who received more favorable treatment than he did, and it is
undisputed that he was not replaced by someone outside of his protected class
because the hospital hired a black woman to replace him. The district court did not
err in granting summary judgment on this issue, either.
B.
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This leaves Hogan’s contention that the district court should not have
entered summary judgment on his retaliation claims. To establish a prima facie
case of retaliation, a plaintiff must show that (1) he engaged in a statutorily
protected expression, (2) he suffered “a materially adverse action,” and (3) “there
was a causal connection between the protected activity and the adverse action.”
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012). For
purposes of a claim brought under Title VII, statutorily protected expression refers
to an employee (1) “oppos[ing] any practice made an unlawful employment
practice by [Title VII]” or (2) “ma[king] a charge, testif[ying], assist[ing], or
participat[ing] in any manner in an investigation, proceeding, or hearing under
[Title VII].” 42 U.S.C. § 2000e-3(a).
The district court found that Hogan failed to show that he engaged in
statutorily protected expression, but we choose to resolve this issue on different
grounds and will assume that Hogan complained of discrimination to Urbonas and
Boyett. After arguing that the district court erred by not doing likewise, Hogan
contends that “[a] jury could find that the fact that . . . Mr. Hogan complained
about Lisa McCutchin was the but-for cause of the discriminatory actions and
retaliation that resulted in his termination.” But complaining about McCutchin’s
job performance does not qualify as a statutorily protected expression under Title
VII, so it does Hogan little good to connect his termination to that event. Nor does
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he attempt to connect his termination to the actual statutorily protected
expression — complaining of discrimination — other than to recite the timeframe
of his complaint to Boyett (May 7, 2013) and his termination (July 19, 2013). Yet
while temporal proximity between the statutorily protected activity and the adverse
employment action can be enough to make out a prima facie showing of causation,
“mere temporal proximity, without more, must be very close.” Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (quotation marks omitted).
We do not think that a delay of 74 days, standing alone, meets that standard.
Finally, even if Hogan made a prima facie case of retaliation, the hospital
has met its burden of presenting legitimate, non-discriminatory reasons for firing
him. See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (applying
McDonnell Douglas burden-shifting framework in retaliation context). The
evidence shows that Hogan was not performing his job duties satisfactorily; that
the hospital placed him on a performance improvement plan; and that when his
performance did not improve, the hospital terminated him and hired someone from
the same protected class as Hogan to replace him. Hogan has not shown that these
stated justifications were merely pretext to fire him due to his race, so the district
court did not err in granting summary judgment on Hogan’s retaliation claims.
AFFIRMED.