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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13149 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-23314-UU
KAREN SHANNON,
Plaintiff-Appellant,
versus
NATIONAL RAILROAD PASSENGER CORPORATION, d.b.a. AMTRAK,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 20, 2019)
Before TJOFLAT, JORDAN and HULL, Circuit Judges.
PER CURIAM: Case: 18-13149 Date Filed: 05/20/2019 Page: 2 of 33
Plaintiff Karen Shannon appeals the grant of summary judgment to her
former employer, National Railroad Passenger Company, d/b/a Amtrak
(“Amtrak”), on her claims alleging violations of 42 U.S.C. § 1981 and the Family
Leave Act (“FMLA”), 29 U.S.C. §§ 2601 and 2615(a). After careful review of the
record and the parties’ briefs, we affirm.
I. BACKGROUND FACTS
Shannon’s claims include both claims for wrongful termination and failure
to hire for other Amtrak positions. We outline Shannon’s work history.
A. 2013 Amtrak Reorganization and Route Director Position
For 28 years, plaintiff Shannon, who is black, worked for Amtrak before she
was terminated during a 2017 company restructuring that eliminated all seven
Route Director positions, including Shannon’s Route Director position.
Over the course of Shannon’s employment, Amtrak underwent eight
corporate reorganizations. When a 2013 restructuring eliminated Shannon’s
position as an Assistant Superintendent of Passenger Services, Shannon applied
for, and obtained, a new position as Route Director of Silver Service in Miami.
The Route Director position was in Amtrak’s long distance business line.
Shannon’s new Route Director position was a promotion, and Shannon described
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the Silver Service route as “the largest and most difficult territory.” 1 In her Route
Director position, Shannon’s direct supervisor was Tom Kirk, Deputy General
Manager, and Kirk’s supervisor was Mark Murphy, General Manager of Long
Distance Services.
B. 2014 Application for Crew Base Manager Position in Miami
In 2014, Shannon sought to step down from her Route Director position into
the position of Crew Base Manager, a lower-level position that she had held
previously. Shannon was not selected to be interviewed for the position.
Ultimately, Georgia DaCosta, who is black, was hired into the Crew Base Manager
position. During her employment, Shannon received multiple promotions and
employee awards. Shannon also was the subject of 19 internal ethics complaints,
but none resulted in discipline. In her December 2014 performance evaluation,
Shannon’s supervisor Kirk reviewed Shannon positively, stating that she had
“performed at an extremely high level” and gave her the highest overall rating of
“materially exceeded commitments” for that year.
1 Because Shannon’s prior salary was not within the target market salary range, she was placed on a progressive salary plan, pursuant to Amtrak policy, to bring her salary up to the target market over time. 3 Case: 18-13149 Date Filed: 05/20/2019 Page: 4 of 33
C. 2015 Requests for Intermittent FMLA Leave
Beginning in June 2015, due to a leg injury that would not heal, Shannon
requested and was granted FMLA leave, which she used intermittently. 2 From
November 2015 to May 2016, Shannon was also permitted to work a reduced
schedule and to telework three days per week. Kirk, as Shannon’s supervisor, was
aware of her FMLA leave. Mark Murphy, as Kirk’s supervisor, also was informed
of Shannon’s FMLA leave.
D. 2015 Investigation and Performance Review
Later in 2015, members of Amtrak’s human resources department
investigated internal complaints, including a petition signed by numerous union
employees, that Shannon and Kirk were promoting people unfairly and giving
some employees preferential treatment, but the investigation found no wrongdoing.
At her December 2015 performance review, Kirk, still as Shannon’s supervisor,
gave Shannon an overall “met commitments” rating. This was below her prior
“materially exceeded commitments” rating and also below even an “exceeded
commitments” rating.
2 Shannon initially was granted FMLA from July 8 to July 30, 2015, and later Amtrak granted her intermittent leave until September 16, 2015. Amtrak also granted Shannon’s subsequent requests for intermittent FMLA leave from November 2015 through May 1, 2016, and from March to August 2017. In her deposition, Shannon agreed that Amtrak approved all of her FMLA leave requests in 2015. 4 Case: 18-13149 Date Filed: 05/20/2019 Page: 5 of 33
After the 2015 investigation and performance review, Shannon was matched
with a female mentor, Ghada Ijam, Amtrak’s Senior Vice President of Information
Technology, to help Shannon better negotiate corporate politics and develop
relationships and leadership skills to succeed in her career. Shannon later declined
to be mentored by Ijam, who was from Iraq, because Shannon (1) did not believe
Ijam understood Shannon’s role in operations and (2) wanted a mentor who was a
woman of color.
E. DaCosta’s 2016 PIP and the Crew Base Manager Position
In May 2016, Shannon placed Georgia DaCosta on a performance
improvement plan (“PIP”) due to DaCosta’s poor work performance. DaCosta
complained that Shannon was unfair and biased in administering the PIP because
Shannon wanted the Crew Base Manager position that DaCosta held. Although
Kirk, Shannon’s supervisor, did not believe Shannon had acted inappropriately in
handling DaCosta’s PIP, he knew that Shannon had expressed interest in
DaCosta’s job and decided to take over supervision of DaCosta’s PIP to avoid the
perception of bias.
In June 2016, Kirk terminated DaCosta because she could not meet the goals
of her PIP. In August 2016, Shannon applied and was interviewed for the now-
vacant Crew Base Manager position in Miami. Shortly thereafter, Mark Murphy,
Kirk’s supervisor, decided not to fill the position because, by that time, Amtrak
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was in the process of reviewing all positions and the CEO had “technically
abolished” all vacancies. That Crew Base Manager position remained unfilled.
F. September 2016 Meeting with Murphy
In September 2016, Murphy met with Shannon and Kirk to talk about
Shannon’s most recent performance review, in which Kirk had given her an overall
rating of only “met commitments.” Murphy told Shannon that she had “checked
out” during that year. Murphy knew that Shannon had recently applied for the
Crew Base Manager position, a position two levels below her current Route
Director position. Murphy said that this “sent a very clear signal to [him] that
[Shannon] was not necessarily interested in her current position.”
Murphy advised Shannon that he was considering consolidating her Route
Director position with another vacant Route Director position for efficiency
reasons. Murphy also discussed with Shannon the possibility of creating a new
position for her reporting directly to him, in which she could use her skills in
analyzing food and beverage and customer service. However, Murphy did not
have the opportunity to consolidate the two Route Director positions or create a
new position for Shannon before Amtrak faced its next reorganization, and then
Murphy was no longer responsible for operations.
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G. Kirk Learns of Shannon’s Unprofessional Conduct
Between late 2016 and early 2017, but after Kirk completed Shannon’s 2016
performance review, Kirk learned that Shannon had engaged in conduct that he
found unacceptable and made him question Shannon’s integrity and commitment
to Amtrak’s core values. Specifically, Kirk learned that Shannon had permitted
employees to surreptitiously listen in on either confidential calls Kirk had had with
Shannon about sensitive employee matters or conference calls meant only for
management about the upcoming 2017 reorganization. Shannon also had obtained
a confidential draft organizational chart relating to the 2017 reorganization.
Shannon has not disputed that she committed this conduct.
H. 2017 Reorganization
In January 2017, Amtrak’s new CEO decided to undertake another
reorganization to restructure Amtrak’s three business lines into four regions. The
reorganization eliminated all seven Route Director positions and created a new
Passenger Experience Department supervised by Vice President Thomas Hall.
Within the new Passenger Experience Department were eight new positions: (1) a
Senior Director of On-Board Service (“OBS”); (2) four regional Directors of OBS
(Southeast, Central, East, and West); and (3) three Senior Managers of OBS
(Miami, New York, and Oakland). Vice President Hall, in consultation with
Amtrak’s human resources department, decided the seven Route Director
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management positions in the long distance business line could not be transferred
over and instead had to be eliminated because the responsibilities of the new
management positions in the Passenger Experience Department were substantially
different.
On January 13, 2017, Vice President Hall and Murphy held a conference call
to discuss the reorganization with the Route Directors. Shortly thereafter, on
February 14, 2017, Shannon applied again for intermittent FMLA leave, including
absences of one to two days per two-week period as needed for flare-ups and for
medical treatment, and a reduced, 8-hour work day, which was approved through
August 14, 2017, or for six months.
On March 8, 2017, Hall sent the Route Directors, including Shannon, formal
“impact letters” advising them that their positions were being eliminated as part of
the reorganization. Hall’s letter invited Shannon to apply for the new positions in
the Passenger Experience Department or other positions within Amtrak. The letter
informed Shannon that Amtrak expected to complete the transition by April 2017,
and that if she did not secure another position within the company by that time, her
employment would be terminated.
In late March 2017, Vice President Hall hired DeQuincy McRea, who is
black, to be the new Senior Director of OBS in the Passenger Experience
Department. McRea then was tasked with hiring the four OBS Regional Directors
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and three OBS Senior Managers who would work underneath him. Hall said that
he gave McRea discretion to put together a management team with which McRea
was comfortable, and Hall approved all of McRea’s hiring decisions.
I. Shannon’s Applications for New OBS Positions in the New Passenger Experience Department
Shannon applied for six of the seven new OBS management positions.3
Senior Director of OBS McRea interviewed all the candidates for these OBS
positions, including Shannon, and did not select Shannon for any of them. Instead,
between April 20 and April 21, 2017, McRea extended offers for the four Regional
Director positions to: (1) Anella Popo, a former Route Director who was black, for
the Southeast Region; 4 (2) Cynthia Winslow, a former Route Director who was
white, for the East Region; 5 (3) Jonathan Lombardi, a former Route Director who
was white, for the Central Region6; and (4) Todd Traynor-Corey, an outside
applicant who was white, for the West Region. 7
3 Shannon did not apply for the Senior Manager position in Oakland. 4 Popo had 22 years of Amtrak experience, including 4 years as Route Director, an MBA with a concentration in management, and a BS in business administration. 5 Winslow had 24 years of experience at Amtrak, including 3 years as Route Director in New York. 6 Lombardi had 9 years of Amtrak experience and additional management experience at DHL and UPS, had a BS in business management, and was finishing his MBA. 7 Traynor-Corey had 15 years of customer service and management experience in the airline industry, an MBA, and a BS in business administration. 9 Case: 18-13149 Date Filed: 05/20/2019 Page: 10 of 33
After McRea offered the OBS West Region position to Traynor-Corey, he
withdrew his candidacy. Jay Fountain, a white former Route Director in Los
Angeles who was retiring, agreed to stay on as acting Regional Director for the
West Region until the position could be filled. McRea then reposted the position
because he and the rest of his interview panel were not comfortable selecting any
of the other interviewed candidates. After interviewing additional candidates,
McRea offered the West Region position to Daniel O’Connell, who is white, on
July 17, 2017
When McRea, who is black, made his hiring decisions for the four Regional
Director positions, he was most concerned with finding people who would work as
a team to put customers and employees first and had a good working relationship
with the union. McRea selected Popo, Lombardo, Winslow, and Traynor-Corey
without first talking to Vice President Hall. McRea made his decisions based on
the candidates’ interviews and recommendations from union representatives and
each applicant’s supervisor. Winslow and Lombardi had good recommendations
from their supervisor, Deputy General Manager Mo Savoy, and the union
representatives. Popo was recommended by Kirk, who told McRea that Popo was
a diligent, always-available worker who would be an asset to his team.
Senior Director McRea said he did not select Shannon because she
performed poorly in her interview, he “was not impressed” with her union
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relationships, and she did not get a high recommendation from her supervisor,
Kirk. McRea said Shannon seemed unenthused in her interview and talked more
about her personal goals and metrics, which suggested to him that she was not
“geared to the goal of the company as far as working together as a team,” and
presented metrics that were not relevant to the position. McRea was also
“surprised that a person with that much time at Amtrak and working these different
positions wouldn’t be more forthcoming and be able to present more examples
directed towards the questions.”
McRea also said Kirk told him Shannon “used to be one of his best
managers” but that over the last several years, she had “been confrontational” and
had “not been readily available to assist,” and that Kirk would choose Anella Popo,
whom Kirk also supervised, over Shannon. Kirk also told McRea that, while
Shannon was technically knowledgeable and very experienced, he had concerns
about her integrity. Similarly, one union representative told McRea that he
sometimes got “into heated discussions about how [Shannon] treated his
employees,” and another said that Shannon was hard to work with. McRea agreed
that Lombardi was less experienced than Shannon, but he was impressed with
Lombardi because he was working on his master’s degree in business, he had
better job performance and recommendations, and he had a “flawless” interview.
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On May 22, 2017, McRea, in consultation with Cynthia Winslow, the new
Regional Director of the East Region, and Vice President Tom Hall, offered the
Senior Manager OBS position in New York to Janice “Alexis” Rogers, who is
black. McRea and Winslow interviewed all the candidates and rated both Alexis
Rogers and another employee (not Shannon) very highly and could not agree on
which one to hire for the Senior Manager position in New York. Winslow said she
was pushing for another employee who had worked for her in the past. Winslow
gave Shannon a low score because she did not perform well in her interview and
seemed “beaten down.” After seeking input from Hall, McRea ultimately picked
Rogers because she had more day-to-day experience than the other employee with
the northeast corridor and “the Acela couplets, which is a big part of our
operation.”
After posting the Senior Manager OBS position in Miami, McRea decided it
should be moved to Lorton, Virginia and reposted the position. Shannon did not
apply for the reposted position in Lorton. On June 12, 2017, McRea, in
consultation with Anella Popo, chose Bruce Oglesby, who is black, for the Senior
Manager position in Lorton. McRea said he and Popo agreed that Bruce Oglesby
was the best candidate of the five interviewed, none of whom was Shannon.
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J. Shannon’s Applications for Non-OBS Positions
Shannon also applied for non-OBS positions, including as Senior Crew
Manager in Wilmington, Delaware, as Manager of Operation Red Block, as
District Station Manager in Miami, and as Superintendent in Miami. Amtrak
employees other than McRea and Hall made these hiring decisions, and again,
Shannon was not selected for any of these positions.
Specifically, Shannon applied and interviewed for the Senior Crew Manager
position in April 2017. The hiring manager, Thomas Chawluk, offered the position
to Elaine Platt-Hall, who is white, on April 24, 2017. Chawluk selected Platt-Hall,
an Amtrak Lead Crew Management Specialist based in Wilmington, because of
her 16 years of experience in crew management, her fresh working knowledge of
the collective bargaining agreement, and her good relationships with the OBS team
and union officers. In his justification for hiring Platt-Hall, Chawluk stated, among
other things, that she “had accepted [his] mentoring over the past few years and
understands the importance of adhering to Amtrak’s values and core
competencies.”
Also in April 2017, Shannon applied for the Superintendent position, and
she interviewed for that position on May 4, 2017. Thomas Kirk, Shannon’s former
supervisor, was the hiring manager for the Superintendent position, and offered
that position to Michael Jerew, who is white, on May 12, 2017. Kirk chose Jerew
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because he “consistently demonstrated the leadership behaviors embodied in
Amtrak’s Values and Core Competencies,” and he had “substantial work and
leadership experience in station operations.” 8 Kirk also said that Jerew had
“demonstrated his willingness to learn and take on new responsibilities” while
working as Assistant Superintendent of Operations. Kirk agreed that both Jerew
and Shannon had significant experience and that “it came down to” Kirk’s
concerns “with the integrity issue” of whether he trusted Shannon and also her
numerous statements to Kirk that “she was not interested in a position at a senior
level anymore.”
Later, Jerew, as the new Superintendent in Miami, was responsible for hiring
for the open District Station Manager position. Shannon applied for that position,
but she was not selected to be interviewed. After a June 19, 2017 interview, Jerew
hired Daniele Simkunas, who is white, and who was then the Assistant
Superintendent Operations for the Tri-Rail. Jerew selected Simkunas because of
her “qualifications and experience, including her ability to manage union
contracts” and because he “received position feedback from Tri-Rail management”
about her ability to manage employees.
8 Jerew had worked at Amtrak since 1984 and had 20 years of management experience, including as a Manager of Station Operations and District Manager of Station Operations and as Assistant Superintendent of Road Operations. 14 Case: 18-13149 Date Filed: 05/20/2019 Page: 15 of 33
Jerew had worked with Shannon at Amtrak for 12 years. While Jerew
originally had a good opinion of Shannon, he believed she changed in 2013, at
which time she began gossiping and complaining about their supervisor, Kirk.
Jerew said he did not consider Shannon to be “a viable candidate” for the District
Station Manager position based on his “professional interactions with [her]” and
his “knowledge of the reputation [she] had developed as an abusive manager to
some employees and her display of preferential treatment to others.” Jerew also
learned from Kirk that he had concerns about Shannon’s integrity, including that
she had allowed her employees to listen in on confidential telephone calls with
management without authorization. Kirk approved Jerew’s selection of Simkunas
and said he would not have approved the selection of Shannon because of his
concerns about her.
On April 18, 2017, Shannon interviewed for the Manager of Operations Red
Block. The Red Block Manager was responsible for designing and implementing
drug and alcohol prevention programs for the workplace. Chian Gavin, the hiring
manager, offered that Red Block Manager position to Juné Rogers, who is black,
on May 5, 2017. Rogers had a Masters in Public Health and prior experience in
alcohol and drug prevention in the workplace.
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K. Shannon’s EEO Helpline Complaint
On April 27, 2017, less than a week after McRea made offers for the four
OBS Senior Director positions, Shannon called Amtrak’s helpline and complained
to Amtrak’s internal Equal Employment Opportunity (“EEO”) officials that Kirk,
Hall, and Murphy were not selecting her for positions, in part, on the basis of her
race and her medical condition. An Amtrak EEO Investigator, Shzrae Mian, began
an investigation and conducted phone interviews with Shannon, Kirk and McRea
on May 2, 2017. Investigator Mian warned Kirk and McRea that Shannon could
not be treated unfairly or retaliated against because of her EEO complaint. Mian
was unable to complete her investigation, however, because Shannon obtained
legal representation and advised Mian that she had filed an external complaint. At
that point, Mian closed the file pursuant to Amtrak’s standard policy.
L. Shannon’s Termination and Final FMLA Leave Request
On May 24, 2017, Amtrak sent Shannon a formal termination letter, which
stated that because her Route Director position was eliminated, she was separated
from employment with Amtrak effective at the close of business on June 8, 2017.
On June 7, 2017, Shannon emailed Amtrak a request for FMLA leave and included
documentation from her doctor stating that Shannon was unable to work due to
tachycardia, elevated blood pressure, anxiety, and work-related insomnia and
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depression. On June 23, 2017, Amtrak denied Shannon’s FMLA request because
she was no longer employed with the company.
II. DISTRICT COURT PROCEEDINGS
A. Shannon’s Complaint
Shannon filed this action alleging that Amtrak: (1) discriminated against her
based on her race, in violation of § 1981; (2) retaliated against her for engaging in
protected activity, in violation of § 1981; (3) interfered with her FMLA rights
when it terminated her employment despite her June 7, 2017 request for FMLA
leave; and (4) retaliated against her for taking FMLA leave. Shannon’s complaint
is in many ways a shot-gun pleading and not a model of clarity. Notably though,
with respect to her § 1981 race discrimination claim, Shannon alleged, among
other things, that race was a “substantially motivating factor in her termination.”
Shannon’s complaint did not assert a claim of race discrimination or retaliation
under Title VII.
B. District Court’s Summary Judgment Order
Following discovery, Amtrak moved for summary judgment on all of
Shannon’s claims. 9 Shannon opposed Amtrak’s summary judgment motion. The
9 Shannon also filed her own motion for partial summary judgment on her FMLA interference claim, which Amtrak opposed, and the district court denied. On appeal, Shannon does not challenge the district court’s denial of her motion for partial summary judgment, and we do not address it further.
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district court granted summary judgment to Amtrak on all of Shannon’s claims.
As the district court noted, Shannon’s response brief was entirely devoid of record
citations supporting her factual assertions, except four instances where she cited
Amtrak’s statement of undisputed facts to “rebut” Amtrak’s claims. 10
As a preliminary matter, the district court concluded that Shannon had
violated Federal Rule of Civil Procedure 56(c) by failing to support the factual
assertions in her response brief with citations to the record. See Fed. R. Civ. P.
56(c)(1)(A) & (3) (requiring a party to support the assertion of a disputed fact with
a citation to the “particular parts of materials in the record” and providing that
“[t]he court need consider only the cited materials”); see also Fed. R. Civ. P.
56(e)(2) (permitting the court to consider undisputed a fact that is not properly
addressed by an opposing party). The district court noted that many of Shannon’s
factual assertions in her response brief could not be found in either party’s
statement of facts, and some appeared to be “categorically false.” Stressing that it
had no obligation to dig through the record, which consisted of more than 3,000
pages, the district court declined to accept Shannon’s factual assertions that “d[id]
not appear with record citations in one of the statements of facts.” 11
10 While a footnote in Shannon’s response brief stated she was incorporating two separately-filed statements of facts, the response brief itself still did not include the necessary record cites. 11 Shannon has abandoned any challenge to the district court’s decision to disregard her factual assertions in opposition to Amtrak’s summary judgment motion that lacked record 18 Case: 18-13149 Date Filed: 05/20/2019 Page: 19 of 33
As for the merits, the district court first noted that Shannon’s § 1981 race
discrimination claim involved two types of employment decisions—(1) the
elimination of her Route Director position as part of the January 2017
reorganization; and (2) the failure to hire Shannon for other Amtrak positions after
the reorganization. As to the former, the district court applied the test in Barnes v.
Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987), applicable to
reductions in force. In doing so, the district court concluded that Shannon had not
met the third prong of a prima facie case by presenting evidence to allow the
factfinder to reasonably conclude that Amtrak’s decision to eliminate the Route
Director position was motivated by Shannon’s race. Shannon does not challenge
that ruling on appeal.
As to Amtrak’s decisions not to hire Shannon for other positions, the district
court applied the McDonnell Douglas 12 burden-shifting framework. 13 The district
court concluded that Shannon had not made out a prima facie case of race
citations, as she failed to make more than a passing reference to this issue on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014). Therefore, the facts recounted above are those the district court relied upon in considering Amtrak’s motion for summary judgment. 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). 13 The district court declined to apply the mixed-motive framework in Quigg v. Thomas County School District, 814 F.3d 1227 (11th Cir. 2016), stating that Shannon’s position in her complaint, pre-trial stipulation, and statement of facts had been that there was no legitimate reason for Amtrak’s hiring decisions and that she could not change her theory to mixed motives for the first time in opposition to Amtrak’s summary judgment motion. 19 Case: 18-13149 Date Filed: 05/20/2019 Page: 20 of 33
discrimination as to the four positions for which a black candidate was selected
(i.e., Southeast Director of OBS given to Anella Popo, the New York and Lorton
Senior Manager of OBS positions given to Alexis Rogers and Bruce Ogelsby, and
the Manager of Operation Red Block position given to Juné Rogers). In any event,
even assuming Shannon had established a prima facie case for all of the challenged
hiring decisions, the district court determined Shannon had not shown that
Amtrak’s legitimate, nondiscriminatory reasons for them were pretext.
As for Shannon’s claim of § 1981 retaliation, the district court concluded
that Shannon could not show a causal connection because most of Amtrak’s hiring
decisions she challenged were made before her protected activity—the April 27,
2017 complaint on Amtrak’s EEO helpline. The only hiring decisions made by
Kirk and McRea (the only hiring managers informed of her EEO complaint) after
her April 27, 2017 EEO complaint were (a) McRea’s decisions as to the Senior
Manager of OBS positions in New York and Lorton, and (b) Kirk’s decision as to
the Superintendent position in Miami. As to those three positions, the district court
concluded that Shannon could establish a causal connection based on temporal
proximity, but that she could not show that Amtrak’s legitimate, nondiscriminatory
reasons for those three hiring decisions were pretextual.
Turning to Shannon’s FMLA claims, the district court determined that
Shannon had not established FMLA retaliation “simply because [she] ha[d]
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adduced no evidence that any hiring manager other than Kirk knew that [she] took
FMLA leave,” and she had not shown that Kirk’s reason for not hiring her for the
Superintendent position in Miami in 2017 was pretextual or motivated in any way
by her FMLA activities.
As for Shannon’s FMLA interference claim, the district court concluded that
Shannon was terminated because her Route Director position was eliminated, and
there was no evidence Shannon’s position was eliminated due to “anything other
than business concerns.” The district court also rejected Shannon’s argument,
made for the first time at summary judgment, that Amtrak’s refusal to grant her
June 7, 2017 request for FMLA leave rendered her unable to exercise her seniority
rights with her union.
III. DISCUSSION
On appeal, Shannon argues that the district court erred in granting summary
judgment. We address each claim in turn.14
A. Section 1981 Race Discrimination
Section 1981 prohibits intentional race discrimination in the making and
enforcement of public and private contracts, including employment contracts. See
14 This Court reviews de novo a grant of summary judgment, viewing the evidence and drawing all reasonable inferences in the light most favorable to the non-moving party. McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014). Summary judgment is appropriate when “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). 21 Case: 18-13149 Date Filed: 05/20/2019 Page: 22 of 33
42 U.S.C. § 1981; Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-460, 95
S. Ct. 1716, 1720 (1975). A plaintiff may establish the employment discrimination
through direct evidence or circumstantial evidence. Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). The parties dispute
whether this case is governed by the McDonnell Douglas burden-shifting
framework or the mixed-motive framework in Quigg v. Thomas County School
District, 814 F.3d 1227 (11th Cir. 2016). We need not resolve this question
because Shannon has not shown the district court erred in granting summary
judgment no matter which framework.
In order to demonstrate a prima facie case of race discrimination in the
failure-to-hire context, the plaintiff must show that: (1) she is a member of a
protected class; (2) who applied and was qualified for the position; (3) despite her
qualifications, she was not selected; and (4) either the position was filled by a
person outside the protected class or the position remained open and the employer
continued to seek applicants. See Lewis v. City of Union City, 918 F.3d 1213,
1221-22 (11th Cir. 2019) (en banc); Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d
763, 768 (11th Cir. 2005); Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836,
843 n.11 (11th Cir. 2000) (explaining that the elements of prima facie cases of race
discrimination under § 1981 and Title VII are the same).
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If the plaintiff establishes a prima facie case, and the defendant articulates a
legitimate, nondiscriminatory reason for its employment decision, the plaintiff
must then show that the employer’s proffered reason was actually a pretext for
discrimination. Alvarez, 610 F.3d at 1264. In doing so, the plaintiff “must meet
that reason head on and rebut it,” and cannot prove pretext by merely recasting the
employer’s reason or by arguing her own business judgment over that of her
employer. Id. at 1265-66 (quotation marks omitted) (explaining that the pretext
inquiry considers the belief of the employer, not the employee).
Further, in the context of Title VII and § 1983 employment discrimination
claims, 15 this Court has differentiated single-motive discrimination claims from
mixed-motive ones:
An employee can succeed on a mixed-motive claim by showing that illegal bias, such as bias based on [race], was a motivating factor for an adverse employment action, even though other factors also motivated the action. In contrast, single-motive claims—which are also known as “pretext” claims—require a showing that bias was the true reason for the adverse action.
Quigg, 814 F.3d at 1235 (quotation marks and citations omitted). 16 The
McDonnell Douglas framework “is inappropriate for evaluating mixed-motive
15 Shannon did not bring any claims under Title VII or § 1983. 16 This Court has not addressed whether Quigg’s mixed-motive framework can be applied to race discrimination claims brought under § 1981. Section 1981 does not contain a provision like the one the Civil Rights Act of 1991 added to Title VII, which provides that a plaintiff can establish an unlawful employment practice by demonstrating “that race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.” See 42 23 Case: 18-13149 Date Filed: 05/20/2019 Page: 24 of 33
claims,” and instead, the plaintiff need only show that the (1) employer made an
adverse employment decision against her, and (2) a protected characteristic was a
motivating factor for that decision. Id. at 1237-39. Thus, district courts must
determine whether the plaintiff has shown that her protected characteristic was a
motivating factor for an adverse employment decision. Id. at 1239.
Based on the undisputed facts considered by the district court, Shannon did
not show that (1) her race was a motivating factor for any of Amtrak’s employment
decisions during the reorganization, or that (2) the legitimate, nondiscriminatory
reasons Amtrak gave for its decisions were pretextual.
In fact, Amtrak exhibited no racial animus because all seven Route Director
positions were eliminated as part of an internal reorganization initiated by its new
CEO. Hall and the human resources department decided to eliminate those Route
Director positions because, in the new Passenger Experience Department, the new
U.S.C. 2000e-2(m); see also Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357, 1358 (11th Cir. 1999) (holding that “the 1991 mixed-motive amendments to Title VII do not apply to § 1981 claims”); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351-63, 133 S. Ct. 2517, 2528-34 (2013) (concluding Title VII’s retaliation provision, 42 U.S.C. § 2000e-3(a), requires the plaintiff to show his protected activity was the “but for” cause of the adverse employment action, not that it was a motivating factor); Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 173-78, 129 S. Ct. 2343, 2349-50 (2009) (concluding under the Age Discrimination in Employment Act’s statutory text, the plaintiff must prove age was the “but for” cause and that the mixed-motive, burden-shifting framework applicable to Title VII discrimination claims does not apply). We need not resolve this § 1981-mixed-motive issue, however, because Shannon, in any event, failed to present sufficient evidence to survive summary judgment under the Quigg summary judgment framework. 24 Case: 18-13149 Date Filed: 05/20/2019 Page: 25 of 33
positions had such different responsibilities that the Route Director positions could
not be preserved.
As to the three regional OBS Director positions and the New York and
Lorton Senior Manager positions, Shannon did not show that race played a role in
McRae’s hiring decisions. The record shows that Shannon did not reapply to the
West Director or the Lorton Senior Manager positions after they were reposted.
McRea, like Shannon, was black, which, while not determinative, makes
Shannon’s burden more difficult. See Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1471 (11th Cir. 1991). Three of the six applicants McRea hired as part of his
new management team—Popo, Alexis Rogers, and Oglesby—were black. Further,
there is no evidence McRea ever expressed any racial animus, and instead the
evidence indicates McRea selected the candidates he believed to be the most
qualified with regard to their experience, union relationships, supervisor
recommendations, and interviews. Although Shannon suggests Hall may have
been the ultimate decisionmaker, there is no evidence he vetoed any of McRae’s
choices, and McRae himself was unsure whether Hall even had to sign off on
them. 17
17 On appeal, Shannon cites to the declarations of two Amtrak employees, Sydney Brickett and Donald Boyd, to support her claim that McRae told them that upper management would not allow him to hire Shannon. The district court disregarded Shannon’s factual assertions relating to Brickett and Boyd, however, because she did not provide record cites to support them in her summary judgment brief. Even if we were to consider them on appeal, they show only that, after interviewing Shannon, McRae said Shannon interviewed well, but that she “must have upset 25 Case: 18-13149 Date Filed: 05/20/2019 Page: 26 of 33
As for the non-OBS positions, Shannon did not point to any evidence that
these decisionmakers harbored any racial animus or selected candidates based on
race. Instead, the evidence showed that they chose the applicant they believed was
the most qualified. Kirk and Jerew also explained that they did not chose Shannon,
in part, because of concerns about her integrity. Although Shannon suggests these
integrity concerns were not credible, she has never disputed that she engaged in the
conduct Kirk found unprofessional and concerning or that Kirk told Jerew about
those concerns. As for the Operation Red Block manager position, the chosen
applicant, Juné Rogers, was black.
In the district court, Shannon pointed to her Route Director progressive
salary plan as evidence of Amtrak’s discriminatory animus. The record reflects,
however, that selected employees were placed on the plan when their previous
salary was outside the target market salary range. Shannon’s salary jumped from
$102,500 to $125,051 when she was hired as a Route Director and continued to
increase over the next three years to $152,232. Further, Winslow, who was white,
was also placed on a progressive salary plan for the same reason.
someone really up high” and that upper-management was “not going to allow him to hire her” because Hall had told him Shannon “kept up a lot of controversy.” These declarations do not suggest upper management or Hall had a racial animus. 26 Case: 18-13149 Date Filed: 05/20/2019 Page: 27 of 33
In sum, as to her mixed-motive theory, Shannon did not demonstrate that her
race was a motivating factor in any of Amtrak’s employment decisions or that the
nondiscriminatory reasons Amtrak gave for its decisions were pretextual.
B. Section 1981 Retaliation
Both the Supreme Court and this Court have confirmed that retaliation
claims under § 1981 are cognizable. See CBOCS W., Inc. v. Humphries, 553 U.S.
442, 451-52, 128 S. Ct. 1951, 1957-58 (2008); Andrews v. Lakeshore Rehab.
Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998). Section 1981 retaliation claims
are analyzed under the same framework as other employment retaliation claims.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
In order to make out a prima facie case of retaliation, a plaintiff must show
that: (1) she engaged in a statutorily protected activity; (2) she suffered a materially
adverse action; and (3) there is a causal connection between the protected activity
and the materially adverse action. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160,
1181 (11th Cir. 2010). If the plaintiff does so, and the employer proffers a
legitimate, nondiscriminatory reason for its actions, then the plaintiff must show
that the reason given is pretextual. Id. at 1181-82.
This Court construes the causal connection element broadly, requiring a
plaintiff to prove only that “the protected activity and the negative employment
action are not completely unrelated.” Chapter 7 Tr. v. Gate Gourmet, Inc., 683
27 Case: 18-13149 Date Filed: 05/20/2019 Page: 28 of 33
F.3d 1249, 1260 (11th Cir. 2012) (quotation marks omitted). To do so, a plaintiff
must show that the decisionmaker was aware of the plaintiff’s protected conduct at
the time of the materially adverse action. Goldsmith v. Bagby Elevator Co., 513
F.3d 1261, 1278 (11th Cir. 2008). Thus, where an employer decided to take a
materially adverse action before the employee engaged in a protected expression,
the two cannot be causally connected. Cotton v. Cracker Barrel Old Country
Store, Inc., 434 F.3d 1227, 1232-33 (11th Cir. 2006).
An employer’s legitimate, nondiscriminatory reason is not a pretext for
prohibited conduct unless it is shown by sufficient probative evidence both that the
reason is false and that the real reason is impermissible discrimination. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515-16, 113 S. Ct. 2742, 2752 (1993). The
plaintiff demonstrates this by showing that it was more likely that a discriminatory
reason motivated the employer or by pointing to weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the explanation. Brooks v. Cty.
Comm’n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006).
Here, the district court did not err in granting Amtrak’s summary judgment
motion on Shannon’s § 1981 retaliation claim. The district court correctly
concluded that Shannon established a prima facie case only as to the hiring
decisions made by Kirk and McRae after May 2, 2017, when Amtrak’s EEO
Investigator Mian made them aware of Shannon’s EEO complaint. There is no
28 Case: 18-13149 Date Filed: 05/20/2019 Page: 29 of 33
evidence in the record that any of the other decisionmakers—Chawluk, Gavin, or
Jerew—ever knew about Shannon’s internal EEO complaint, and McRae extended
offers to Popo, Winslow, and Lombardi prior to May 2, 2017. Shannon did not
reapply for the Lorton Senior Manager or the West Director positions when they
were reposted, so she cannot show that she suffered a materially adverse action
with respect to those two positions filled by McRae after May 2, 2017.
That leaves only the Superintendent position in Miami, for which Kirk
selected Michael Jerew on May 12, 2017—which was after the April 27 complaint.
Kirk hired Jerew because he had consistently demonstrated leadership behaviors
that embodied Amtrak’s values and core competencies, had twenty years of work
and leadership experience in station operations, and he had demonstrated a
willingness to learn new things and take on new responsibilities. In contrast, Kirk
was concerned about whether Shannon’s conduct embodied Amtrak’s values and
core competencies because she had acted unethically by letting employees listen in
on confidential phone calls and had obtained a confidential draft organizational
chart.
While Shannon argues that the close temporal proximity between her EEO
complaint and Kirk’s decision to hire Jerew (ten days) establishes pretext, she does
not deny that she engaged in the behavior Kirk found unethical, and she did not
show any implausibilities or weaknesses in Kirk’s reasons for selecting Jerew over
29 Case: 18-13149 Date Filed: 05/20/2019 Page: 30 of 33
her. Accordingly, the district court properly concluded Shannon had not shown
pretext for retaliation with respect to the Superintendent position in Miami.
C. FMLA Claims
Under the FMLA, eligible employees are entitled to take unpaid leave
“[b]ecause of a serious health condition that makes the employee unable to
perform the functions of [her] position.” 29 U.S.C. § 2612(a)(1)(D). The FMLA
guarantees an eligible employee the right to be restored to the position she held
when her leave commenced or to an equivalent position. Id. § 2614(a)(1)(A)-(B).
To enforce these rights, the FMLA creates two types of claims: interference
claims, which assert an interference with a substantive right under the act, see 29
U.S.C. § 2615(a)(1), and retaliation claims, which assert that the employer
discriminated because of the employee engaging in activity protected by the Act,
see 29 U.S.C. § 2615(a)(1) & (2). Strickland v. Water Works & Sewer Bd., 239
F.3d 1199, 1206 (11th Cir. 2001).
1. FMLA Retaliation
Absent direct evidence of a defendant’s retaliatory intent, a plaintiff’s
FMLA retaliation claim is evaluated under the McDonnell Douglas framework.
Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). A
plaintiff must therefore establish a prima facie case by demonstrating: (1) she
engaged in statutorily protected activity; (2) she suffered an adverse employment
30 Case: 18-13149 Date Filed: 05/20/2019 Page: 31 of 33
decision; and (3) the decision was causally related to the protected activity. Id.
Thus, if a plaintiff establishes a prima facie case, and the defendant articulates a
legitimate, nondiscriminatory reason for an adverse action, the plaintiff must show
that its purported reason was a pretext for discrimination. Id. at 1243-44.
Here, the district court did not err in granting summary judgment on
Shannon’s FMLA retaliation claim. With regard to Shannon’s June 2017
termination, the district court correctly concluded that she had not established the
third prong, causation. Hall, in consultation with the human resources department,
eliminated the Route Director positions in order to repost them as new positions
with different responsibilities in the Passenger Experience Department, and there is
no evidence that Hall and the people in the human resources department who
helped him make that decision in March 2017 knew about Shannon’s FMLA
leave. 18 The same is true with respect to the hiring decisions made by McRae,
Chawluk, Gavin, and Jerew during the 2017 reorganization, as there was no
evidence that any decisionmaker other than Kirk knew about Shannon’s FMLA
leave.
18 Shannon argues that Amtrak “showed a propensity to punish [her] for exercising her rights under the FMLA,” and cites as an example her testimony that Murphy told her during a discussion about her 2015 annual review that she had “checked out” that year. Shannon suggests Murphy’s statement was an oblique reference to her FMLA leave, but Murphy explained that the fact that Shannon had applied for a lower position in 2014 clearly indicated to him that she was no longer interested in her Route Director position. 31 Case: 18-13149 Date Filed: 05/20/2019 Page: 32 of 33
Although Shannon established a prima facie case of FMLA retaliation with
regard to Kirk’s refusal to hire her for the Superintendent position, she did not
rebut his legitimate, nondiscriminatory reasons for his hiring Jerew over Shannon,
and therefore failed to demonstrate pretext.
2. FMLA Interference
To establish an FMLA interference claim, a plaintiff must show that: (1) she
was entitled to a benefit under the FMLA; and (2) her employer denied her that
benefit. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir.
2015). If the employee shows she was entitled to a benefit, she need only
demonstrate by a preponderance of the evidence that she was denied the benefit;
the employer’s motives are irrelevant. Batson v. Salvation Army, 897 F.3d 1320,
1331 (11th Cir. 2018).
Where the interference claim is based on the employee’s termination,
however, “an employer may affirmatively defend against the claim by establishing
that it would have terminated the employee regardless of her request for or use of
FMLA leave.” Id. Similarly, an employer is not liable for failing to reinstate an
employee after she has taken FMLA leave if it can show that it refused to reinstate
her for a reason unrelated to FMLA leave. Krutzig v. Pulte Home Corp., 602 F.3d
1231, 1236 (11th Cir. 2010). Thus, in order for an employer to be held liable for
32 Case: 18-13149 Date Filed: 05/20/2019 Page: 33 of 33
FMLA interference, the request for leave must have been the proximate cause of
the termination. Schaaf, 602 F.3d at 1242.
Shannon contends that she was still employed by Amtrak on June 7, 2017,
when she requested additional FMLA leave and Amtrak’s subsequent denial on
June 23, 2017 established an interference claim. Shannon ignores the fact that her
Route Director position, along with all the others, had been eliminated back in
March 2017 as part of a reorganization, and that the decision was made at that time
to terminate her if she could not find another position within Amtrak. As the
district court explained, there was no evidence that this elimination of seven Route
Director positions, including Shannon’s, was motivated by anything other than
business concerns. Thus, Shannon has not shown that her final June 7, 2017
request for leave was the proximate cause of her termination.
AFFIRMED.