RAMONICA M. LUKE v. UNIVERSITY HEALTH SERVICES, INC.
No. 19-13788
United States Court of Appeals, Eleventh Circuit
January 28, 2021
D.C. Docket No. 1:17-cv-00125-JRH-BKE
Appeal from the United States District Court for the Southern District of Georgia
(January 28, 2021)
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
MARTIN, Circuit Judge:
Ramonica Luke, a former employee of University Health Services, Inc. (“University Health“) sued University Health under Title VII for alleged racial discrimination after she was terminated. The District Court granted summary
I. BACKGROUND1
In May 2006, Ms. Luke, who is African-American, began working as a patient care assistant for University Hospital. University Hospital is operated by University Health, which is the party to this appeal. Later in 2006, Ms. Luke began working in the lab at University Hospital as a phlebotomist/processor during the night shift. Her hours were from 6:00 PM to 6:30 AM. In that position, she was responsible for drawing blood, inputting patient demographics, answering phone calls, and filing paperwork. Ms. Luke was supervised by Vickie Forde.
As time passed, Ms. Luke accumulated a lengthy disciplinary record for tardiness and attendance problems during her work for University Hospital. She received verbal counseling in March 2008 due to her violating University Hospital‘s attendance pоlicy. She then received written warnings in August 2008, June 2011, and January 2014, again for violating the attendance policy. In August 2014, Ms. Luke got a final written warning for violating the attendance policy, which said “the next occurrence of not meeting hospital policy could result in termination.” Ms. Luke received a second and a third final written warning in
Then at 6:11 PM on December 31, 2016, Ms. Forde got an email from Amita Simmons, who was working the shift prior to Ms. Luke‘s. Ms. Simmons wrote, “I have been here since 4 a.m. AND I am still here, Ramonica is continuously late and [it‘s] not fair to me.” The next day, Ms. Forde received another email from Ms. Simmons, which said, “I had to stay 15 minutes behind the schedule on the clock because Ramonica was late.” Prompted by Ms. Simmons‘s complaint, Ms. Forde set out to investigate. Ms. Forde reviewed the time adjustment sheet, which documents an employee‘s hours of work on those occasions when the employee forgets to clock in. The time adjustment sheet had an entry by Ms. Luke on December 1, 2016 saying that she “forgot to clock in [at] 6pm.” Although Ms. Luke did not write that the time adjustment sheet was for December 31, 2016, there werе a couple of circumstances that made Ms. Forde believe that Luke meant to make a time adjustment for December 31 instead of for December 1. First, the time adjustment sheet is kept in chronological order, and Ms. Luke‘s entry
After her investigation, Ms. Forde recommended that Ms. Luke be terminated based on her history of attendance problems and what Forde perceived as falsification of the time adjustment sheet. Ms. Forde‘s recommendation went to Vita Mason, an employee relations specialist in the human resources department, for review. Ms. Mason felt she could neither definitively prove nor disprove whether Ms. Luke falsified the time adjustment sheet, but she approved the recommendation for termination based solely on Luke‘s history of attendance problems. Ms. Mason then sent the termination recommendation to Chris Westbrook, vice president of human resources at University Hospital, who provided final approval for Ms. Luke‘s termination. Ms. Luke was terminated on January 11, 2017 based on her history of attendance problems, including 32 documented instances of being tardy in the preceding year.
II. DISCUSSION
We review de novo a district court‘s order granting summary judgment, “viewing all evidence and drawing all reasonable inferences in favor of the nonmoving party.” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1249 (11th Cir. 2014) (quotation marks omitted). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
We begin by setting out the legal framework that guides us. Title VII makes it unlawful for an employer to “discharge any individual, or otherwise to
Applying this legal framework at summary judgment, the District Court first assumed Ms. Luke had established her prima facie case. The District Court then found that University Health provided a legitimate, non-discriminatory reason for Ms. Luke‘s termination, as the “record contains evidence documenting [Luke‘s] attendance issues, multiple warnings, a coworker complaint, and a termination letter identifying attendance as the reason.” At the third step, the District Court found that Ms. Luke failed to meet her burden of showing University Health‘s proffered reason was pretextual. In this Court, Ms. Luke makes five challenges tо the District Court‘s summary judgment ruling. We address these issues in turn.2
A. Ms. Luke‘s proffered comparators do not show discrimination.
In order to show discrimination, an employee must show that her employer treated her less favorably than similarly situated employees. Lewis v. City of Union City, 918 F.3d 1213, 1221 (11th Cir. 2019) (en banc). This is because “discrimination is a comparative concept—it requires an assessment of whether
Ms. Luke argues the District Cоurt erred by failing to consider her eight comparators: Frances Darnell, Pamela Evans, Jennifer Campbell, Janet Neal, Alice Mueller, Blake Wojtaszok, Joy Sizemore, and Laura Glossom. According to Ms. Luke, these people are white, have a history of attendance problems, and worked under Ms. Forde as a phlebotomist/processоr or as a courier at University Hospital. None of them were terminated for attendance problems. Ms. Luke is correct that the District Court failed to consider her comparators at the prima facie stage of McDonnell Douglas. But that‘s only because the District Court assumed Ms. Luke established her prima facie case, so it had no need to evaluate hеr comparator evidence at McDonnell Douglas‘s first step. To the extent Ms. Luke argues the
Indeed, the record shows Ms. Luke‘s comparators were not similarly situated to Luke in “all material respects” insofar as the comparators did not share Luke‘s “employment or disciplinary history.” See Lewis, 918 F.3d at 1226, 1228 (quotation marks omitted). Specifically, Ms. Forde never suspected the comparators of falsifying time and attendance records. We recognize that Ms. Luke was not ultimately terminated because of her suspected falsification of the time adjustment sheet, but Ms. Forde‘s perception that Luke falsified the time adjustment sheet led Forde to recommend termination. And Ms. Mason then approvеd Ms. Forde‘s recommendation because of Ms. Luke‘s history of attendance problems. Thus, the suspected falsification is a material difference between Ms. Luke and her comparators in that it got the ball rolling towards her termination.3 Beyond that, no coworker of the comparators complained to Ms.
B. The District Court did not imprоperly consider Angela Thomason in finding that Ms. Luke failed to show pretext.
When discussing the issue of pretext, the District Court noted in passing that Mr. Westbrook, the vice president of human resources at University Hospital who made the final decision to terminate Ms. Luke, “treated a Caucasian employee [Angela Thomason] in the same manner” as Ms. Luke. Ms. Luke arguеs the District Court erred in considering Ms. Thomason as a comparator because, according to Luke, Thomason does not have the same employment history as Luke. Ms. Luke did not first raise this argument in the District Court, so we cannot consider it on appeal. See Access Now, 385 F.3d at 1331. But even if we could, Ms. Luke‘s argument is unavailing. As an initial matter, we are not convinced that the District Court treated Ms. Thomason as a comparator. For instance, the District Court never addressed whether Ms. Thomason was similarly situated to
Nevertheless, even if the District Court did consider Ms. Thomason as a comparator at the pretext stage, Ms. Luke has not shown that the District Court erred in doing so. Although Ms. Luke says Ms. Thomason does not have the same employment history as herself (and is thus not similarly situated), the burden is on Luke at the pretext stage, and she has not explained how Thomason‘s employment history is diffеrent from her own. See Smelter, 904 F.3d at 1288 (stating that, at the pretext stage, “the burden shifts back to the employee“).
C. The purportedly inconsistent reasons provided by University Health for terminating Ms. Luke do not show pretext.
Ms. Luke says the reasons given by University Health for her termination are inconsistent. She says University Health said she was terminated for being tardy on December 31, 2016, but she reads a January 25, 2017 letter from Ms. Mason as saying she was terminated “due to a mispunch (not clocking in).” Ms. Luke offers this inconsistency to show that University Health‘s proffered reason for terminating Luke is a pretext for discrimination.
Inconsistencies in or shifting explanations for an employer‘s proffered reason for termination can indeed be evidence of pretext. See Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998); Bechtel Constr. Co. v. Sec‘y of Labor, 50 F.3d 926, 935 (11th Cir. 1995). However, a close view of the evidence
D. Ms. Luke cannot rely on the work rule defense to show pretext.
Ms. Luke‘s next argument relies on what is called the “work rule defense.” On summary judgment, when an employer‘s profferеd reason for terminating an employee is the violation of a work rule, that reason is “arguably pretextual when a plaintiff submits evidence (1) that she did not violate the cited work rule, or (2) that if she did violate the rule, other employees outside the protected class, who
E. University Health‘s purported failure to follow its policies does not show pretext.
Finally, Ms. Luke says University Health failed to follow its policies, which shows pretext. An employer‘s deviation from its policies can be evidence of pretext. See Bass v. Bd. of Cnty. Comm‘rs, 256 F.3d 1095, 1108 (11th Cir. 2001), overruled on other grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).
III. CONCLUSION
Ms. Luke has not shown “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer‘s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Furcron, 843 F.3d at 1313. The District Court therefore properly granted summary judgment in favor of University Health.
AFFIRMED.