Fabiola Torres-Skair v. Medco Health Solutions of Hidden River, LC , 595 F. App'x 847 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14476
Non-Argument Calendar
________________________
D.C. Docket No. 8:12-cv-00465-MSS-MAP
FABIOLA TORRES-SKAIR,
Plaintiff-Appellant,
versus
MEDCO HEALTH SOLUTIONS, INC.,
Defendant,
MEDCO HEALTH SOLUTIONS OF HIDDEN RIVER, LC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 4, 2014)
Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Fabiola Torres-Skair appeals the district court’s grant of summary judgment
in favor of her former employer, Medco Health Solutions of Hidden River, LC
(“Medco”), on her claims of pregnancy discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a) and
§ 2000e(k) (“Title VII”), and the Florida Civil Rights Act (“FCRA”), Fla. Stat.
§ 760.10. In the district court, Torres-Skair claimed that Medco took three adverse
employment actions against her because of her pregnancy: giving her a negative
performance evaluation, placing her on administrative leave, and then terminating
her employment. Medco asserted that the decisions were based solely on Torres-
Skair’s violations of work policies. After careful review, we affirm.
I.
A. Factual Background
Medco is a third-party manager of prescription benefits for health insurers
that provides prescription drugs by mail and prescription claims-processing
services for insured persons. Torres-Skair began working for Medco as a clinical-
care pharmacist in February 2009 at Medco’s center in Tampa, Florida, mostly
working over the telephone.
Her primary job duties at Medco included counseling patients about
medications and encouraging patients to sign up for mail-order prescription
services provided by Medco, instead of buying their prescriptions at retail stores.
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With the pharmacists’ knowledge, Medco monitored their telephone calls. Torres-
Skair’s direct supervisor at Medco was Yvette Powrie. Powrie, in turn, reported to
Jennifer Narducci, the director of the group in which Torres-Skair worked.
Torres-Skair began working from home in early 2010, using a computer,
auto-dialer, and headset provided by Medco. While working at home, she had
equipment trouble that persisted throughout her tenure.
Beginning in 2010, Medco for the first time instituted production quotas.
Pharmacists in Torres-Skair’s group initially were expected to meet certain weekly
goals for the number of prescriptions they converted from retail to mail order
(“prescriptions per week”) and the rate at which they converted those prescriptions
(“accept rate”). At some point in mid-2010, Medco added more goals relating to
the number of calls pharmacists made (“green lights”) and the percentage of time
they spent logged on but not actively on a call (“idle time”).
1. Medco Learns that Torres-Skair is Pregnant
Torres-Skair found out that she was pregnant sometime in October 2010.
Before this time, management had had some concern about Torres-Skair’s
production. Without knowledge of Torres-Skair’s pregnancy, Powrie called
Torres-Skair on October 29, 2010, and explained that her job performance was
deficient, specifically with respect to her prescription numbers, and she identified
several areas for improvement. After this discussion, but during the same
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telephone call, Torres-Skair told Powrie for the first time that she was pregnant.
Powrie passed this information to Narducci two days later.
Beginning on January 1, 2011, Medco increased the prescriptions-per-week
goal for all pharmacists in Torres-Skair’s group. Then, Narducci directed Powrie
to develop plans to help certain employees, including Torres-Skair, achieve the
new production requirements.
At about the same time, Torres-Skair informed Medco that she had been
placed on certain medical restrictions by her physician. Powrie thereafter began to
make comments to Torres-Skair regarding her pregnancy and related medical
restrictions. Powrie stated that Torres-Skair was “moody,” “that [her] pregnancy
was affecting [her] effectiveness,” “that the doctor’s notes that [she] was giving
were reducing [her] production” because they meant that Torres-Skair would not
be able to be on the telephone as much as usual, and that she thought that Torres-
Skair was “more moody than usual.” Powrie also told Greg Chavez, Powrie’s
counterpart in Arizona, that Torres-Skair was pregnant.
2. The 2010 Annual Performance Evaluation
Torres-Skair received her 2010 performance evaluation from Powrie on
March 9, 2011. According to Powrie’s evaluation, Torres-Skair was “consistently
below the goals” for prescriptions per week, green lights, and idle time, and her
performance had declined during the year. Powrie further stated that Torres-
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Skair’s “performance d[id] not meet expectations,” that it “require[d]
improvement,” and that “[s]he display[ed] a negative demeanor about the position”
that came through occasionally on her calls. Due to the evaluation, Torres-Skair
did not receive a bonus or stock opportunities with Medco.
Over the next several days, Torres-Skair filed anonymous complaints with
Medco’s Ethics Hotline’s toll-free number about Powrie and Chavez, claiming that
they had retaliated against her for expressing concerns about the job.1 She also
complained that Powrie told Chavez that Plaintiff was pregnant and hormonal.
Medco investigated the complaint and did not find any retaliation.
3. Torres-Skair is Placed on Administrative Leave and then Discharged
Acting on a request from another Medco manager, who interacted with
Torres-Skair’s group, Medco began investigating Torres-Skair’s sales calls in May
2011 to determine if she was “refaxing” prescription requests. Refaxing occurred
when a pharmacist faxed a request for a customer’s prescription to the customer’s
physician after that same request had already been faxed, which resulted in a
pharmacist receiving additional credit for the same prescription. According to
Torres-Skair, this was common practice and condoned by Powrie, among others.
Another Medco manager, Brian Schumm—who also did not supervise
Torres-Skair—conducted the research and reviewed Torres-Skair’s sales calls for a
1
Torres-Skair had expressed negative sentiments about the job to Chavez during a focus-
group meeting in February 2011.
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one-week period in May 2011. From his research, Schumm observed the
following relevant issues in Torres-Skair’s calls: (1) Torres-Skair disconnected a
call with a customer; (2) she refaxed prescription requests instead of obtaining
verbal orders from physicians; (3) she remained on the line for an excessive period
of time without leaving a voicemail; and (4) she did not appear to be answering
many of the calls that were being routed to her.
On May 18, 2011, Torres-Skair notified Powrie that she was contacting
Medco’s third-party handler of claims under the Family and Medical Leave Act
(“FMLA”), in anticipation of taking FMLA maternity leave.
Two days later, on May 20, 2011, Powrie, Narducci (Powrie’s supervisor),
and Jennifer Bannon (a human resources manager), conducted a conference call
with Torres-Skair regarding Schumm’s report of her sales calls. During the call,
Torres-Skair was placed on administrative leave pending further investigation.
Afterwards, Torres-Skair called the Ethics Hotline and stated her belief that
Narducci, Bannon, and Powrie were “building a case” to provide management
reason to terminate her in order to deprive her of maternity-leave benefits. After
the conference call, Powrie learned that Torres-Skair had intended to start her
FMLA leave that same day.
After conducting additional research based on Schumm’s report, Narducci
ultimately obtained approval to terminate Torres-Skair’s employment for hanging
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up on a customer, avoiding calls, and failing to follow standard operating
procedure with respect to refaxing. Narducci specifically found that Torres-Skair
had violated “Work Rule 11,” which listed “[h]anging up on a customer—or
otherwise inappropriately terminating a call” as a serious infraction which could
lead to termination without prior warning or other disciplinary action. On May 31,
2011, Bannon notified Torres-Skair in writing that her employment with Medco
was being terminated for “issues concerning [her] performance including but not
limited to the disconnecting of a member on May 7, 2011.”
B. Procedural History
Torres-Skair filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) in July 2011. She received her notice of right
to sue in December 2011, and timely filed the instant action in the United States
District Court for the Middle District of Florida. The district court granted
summary judgment to Medco, concluding that Torres-Skair had failed to establish
a prima facie claim of pregnancy discrimination. The court further concluded that,
even if Torres-Skair had established a prima facie claim with respect to the
administrative leave and termination decisions, she had not shown that Medco’s
reasons for the adverse actions were pretextual. Finally, the court concluded that
Torres-Skair had not shown that she was retaliated against for statutorily protected
conduct. This appeal followed.
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II.
We review a district court’s grant of summary judgment de novo, viewing all
evidence in the light most favorable to the non-movant. Owen v. I.C. Sys., Inc.,
629 F.3d 1263, 1270 (11th Cir. 2011). A movant is entitled to summary judgment
if “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). A dispute about a material
fact is “genuine” “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505 (1986).
III.
On appeal, Torres-Skair argues that (1) she established a prima facie case of
pregnancy discrimination by showing that she was treated differently than valid
comparators and that Medco violated its own policy in terminating her; (2) she
satisfied her burden of establishing pretext; and (3) she presented sufficient
circumstantial evidence of retaliation to defeat summary judgment. We address
each argument in turn.
A. Pregnancy Discrimination
Title VII and the FCRA prohibit certain employers from discriminating
“against any individual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.
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§ 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a). The term “because of sex” includes
“because of or on the basis of pregnancy, childbirth, or related medical
conditions.” 42 U.S.C. § 2000e(k). See also Delva v. Continental Grp., Inc., 137
So. 3d 371, 375-76 (Fla. 2014) (holding that the FCRA prohibits pregnancy
discrimination).
“Under Title VII, a plaintiff may prevail on a claim by showing that her
pregnancy ‘was a motivating factor’ for an employment decision.” Holland v.
Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (citing 42 U.S.C. § 2000e-2(m)). To
prove the claim, a plaintiff may rely on direct or circumstantial evidence. Id.
Direct evidence is evidence which, if believed, would prove the existence of a fact
in issue without inference or presumption. Id. Circumstantial evidence, by
contrast, requires an inferential leap to establish discriminatory motive.
“[O]nly the most blatant remarks whose intent could be nothing other than to
discriminate on the basis of some impermissible factor constitute direct evidence of
discrimination.” Id. (quotation marks omitted). No evidence presented by Torres-
Skair meets this rigorous standard. She has pointed to comments made by Powrie,
such as that Torres-Skair was “moody,” “hormonal,” and that her pregnancy and
medical restrictions were affecting her production, which certainly are probative of
Powrie’s state of mind. But a factfinder still must infer that whatever
discriminatory animus these comments evidence actually motivated Powrie’s
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negative performance review of Torres-Skair, her placement on administrative
leave, or her termination—a fact that precludes the comments from constituting
direct evidence of discrimination. 2 See Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999). In this respect, Torres-Skair’s
reliance on Holland is misplaced. In Holland, this Court found direct evidence of
discrimination where the decision maker explicitly testified that part of his
reasoning for transferring the plaintiff was her pregnancy. 677 F.3d at 1058.
Clearly, if believed, the testimony in Holland proved that the plaintiff’s pregnancy
was a motivating factor for the transfer decision. No similar comment is part of
the record before us.
Because no direct evidence of discrimination on the basis of pregnancy
exists on this record, we apply the burden-shifting framework of McDonnell
Douglas for claims based on circumstantial evidence. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973); Holland, 677 F.3d at 1055. The
plaintiff bears the initial burden of presenting a prima facie case of discrimination.
McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817.
2
Nor does the record reflect that Powrie exercised any real influence on the decision to
place Torres-Skair on administrative leave or to terminate her employment. Although Powrie
was involved during this process, unrefuted testimony shows that Narducci placed Torres-Skair
on administrative leave and made the recommendation to terminate her employment based on a
report prepared at the request of another supervisor who did not supervisor Powrie or Torres-
Skair. Powrie’s effect on these decisions is too indirect and remote to be actionable. See, e.g.,
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999) (stating that a party
with no power to discharge may be liable for discrimination where the party is “actual cause” of
the decision to terminate the employee).
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To establish a prima facie case of pregnancy discrimination, a plaintiff may
show that she was (1) pregnant; (2) qualified to do the job; (3) subjected to an
adverse employment action; and (4) treated differently than similarly situated non-
pregnant employees, in that employment or disciplinary policies were differently
applied to her. See DuChateau v. Camp, Dresser & McKee, Inc., 713 F.3d 1298,
1302 (11th Cir. 2013); Holland, 677 F.3d at 1055. In determining whether
employees are similarly situated, we have explained that a “comparator must be
nearly identical to the plaintiff to prevent courts from second-guessing a reasonable
decision by the employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091
(11th Cir. 2004). Nevertheless, “[a] plaintiff alleging pregnancy discrimination
need not identify specific non-pregnant individuals treated differently from her, if
the employer violated its own policy in terminating her.” Armindo v. Padlocker,
Inc., 209 F.3d 1319, 1321 (11th Cir. 2000). If a prima facie case is established, the
burden shifts to the defendant to come forward with a legitimate, non-
discriminatory reason for the employment decision. Chapman v. AI Transp., 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Once the defendant articulates such a legitimate, non-discriminatory reason,
the plaintiff then must show that the defendant’s reason was pretextual. Id. To
establish pretext, a plaintiff must create a genuine issue of material fact that the
reasons given by the employer were not the real reasons for the adverse
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employment decision, but were pretexts for discrimination. Id. at 1024-24.
Alternatively, the plaintiff may survive summary judgment by presenting sufficient
circumstantial evidence to raise a reasonable inference of intentional
discrimination. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320
(11th Cir. 2012).
The district court here found that Torres-Skair had satisfied the first three
requirements of her prima facie case but that she had failed to show a valid
comparator for purposes of assessing whether she was treated differently. We now
turn to the three adverse employment actions asserted by Torres-Skair: the negative
performance evaluation in 2010, her placement on administrative leave, and her
eventual termination. The district court and the parties addressed the latter two
actions together, and we will do so as well.
1. Negative Performance Evaluation
Torres-Skair contends that four other non-pregnant pharmacists received
more favorable evaluations in 2010 despite having similar production numbers.
She relies on a ranking sheet of pharmacists for average prescriptions per week
over the year, which shows that one other pharmacist, Katrina Stokes, actually
performed worse on this criterion (36 per week) than Torres-Skair (39 per week).
The chart states, “Needs improvement = less than 38rxs/week.” Torres-Skair was
the only pharmacist who received the “NI” rank for “needs improvement.”
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Here, Torres-Skair did not present sufficient evidence that would allow a
reasonable jury to find that her pregnancy was a motivating factor in Powrie’s
negative evaluation. First, the single statistic on which Torres-Skair seeks to
compare herself to Stokes (and the other pharmacists) does not take into account
the other criteria on which the pharmacists were evaluated, such as green lights,
idle time, and other similar factors. The ranking sheet that Torres-Skair relies on
covers only the prescription numbers and was not otherwise analyzed through
testimony. See, e.g., Wilson, 376 F.3d at 1089 (“Statistics without any analytical
foundation are virtually meaningless.”) (citation and quotation marks omitted). As
a result, the court cannot ascertain whether Stokes was similarly situated to Torres-
Skair for purposes of her 2010 performance evaluation. Nor does the evidence
allow for a meaningful comparison to the other non-pregnant pharmacists.
Therefore, the district court properly found that Torres-Skair failed to show that
similarly situated employees outside of her protected class were treated differently.
See id. at 1091.
Furthermore, Torres-Skair’s supervisors initially identified Torres-Skair’s
deficient job performance well before learning that she was pregnant.
Significantly, on April 15, 2010, Narducci sent an email to Powrie expressing
concern about Torres-Skair’s low prescription numbers. On September 29, 2010,
Powrie sent an email to Torres-Skair asking her to explain why her statistics were
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low the previous Friday. Then, on October 29, 2010, Powrie called Torres-Skair
and, after discussing her job performance, explained to her that if Torres-Skair did
not improve her performance, she might have to return to work at the call center
instead of working from home, or she might be placed on a performance-
improvement plan. Following this discussion and fifty minutes into the telephone
call, Torres-Skair advised Powrie for the first time that she was pregnant. Powrie
informed Narducci of Torres-Skair’s pregnancy on November 1, 2010.
In addition, a review of Torres-Skair’s quarterly prescription production
corroborates Torres-Skair’s supervisors’ impressions that Torres-Skair’s work had,
in fact, decreased. In the first quarter of 2010, Torres-Skair had 572 quarterly
prescriptions; she had 519 in the second, 486 in the third, and 459 in the last—a
decrease of 5% each quarter for a total decrease of 20% from the first quarter to the
last, and Torres-Skair did not inform Defendant of her pregnancy until well into
the last quarter of the year.
While we are troubled by the comments that Torres-Skair attributes to
Powrie and acknowledge that the evidence shows that Powrie thought Torres-
Skair’s job performance had been negatively affected by her pregnancy after
learning of it, those facts alone do not create a material dispute of fact that
Powrie’s negative evaluation was motivated by unlawful discrimination. “Under
the PDA, the employer must ignore an employee’s pregnancy and treat her as well
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as it would have if she were not pregnant.” Spivey v. Beverly Enterprises, Inc., 196
F.3d 1309, 1313-14 (11th Cir. 1999) (internal quotation marks omitted). In other
words, deficient job performance remains a non-discriminatory basis on which
employers may make employment decisions, so long as performance standards are
applied equally. 3
For these reasons, the district court properly concluded that Torres-Skair did
not establish a prima facie claim based on the negative performance evaluation.
2. Administrative Leave and Discharge
Regarding valid comparators for her claims based on administrative leave
and termination, Torres-Skair points out that Abigail Capito, who had similar
average prescription numbers (40 per week) as Torres-Skair, was put on a
“performance focus plan” (“PFP”), while Torres-Skair was not. Torres-Skair also
contends that she need not show a comparator because Medco violated its own
policies by firing her without first giving her a PFP.
The record shows that Medco’s policies provide for a progressive
disciplinary system to address deficient job performance. First, pharmacists
receive coaching. If no improvement is shown, Medco will institute a PFP for the
pharmacist. After a pharmacist fails to meet the components of a PFP, Medco will
3
Nonetheless, unlawful discrimination may be shown where an employer fails to
accommodate pregnant employees in the same way that employees with temporary disabilities
are accommodated, see Spivey, 196 F.3d at 1312-13, or disallows pregnant employees to take
sick leave for pregnancy-related conditions where such relief is available to other non-pregnant
employees, see Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1382-83 (11th Cir. 1994).
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implement a final written PFP, which may result in further disciplinary action or,
eventually, termination. In this case, Torres-Skair’s supervisors agreed in February
2011 that a PFP was necessary to address her performance issues. Powrie in fact
drafted such a plan and submitted it to Narducci for her review. However, Medco
never implemented the PFP for Torres-Skair.
Nevertheless, we disagree that Medco’s failure to implement a PFP for
Torres-Skair before she was terminated shows that the company treated her
differently than a similarly situated pharmacist or violated its own policies.
Notably, Torres-Skair has not shown that the only way in which an employee may
be fired is after being placed on a PFP or related plans. Medco’s stated reason for
Torres-Skair’s discharge was a violation of Work Rule 11, among other issues not
directly related to deficient production. Work Rule 11 specifically provides that
hanging up on a customer or otherwise inappropriately terminating a call is a
“serious infraction which could lead to discharge without prior warning or other
disciplinary action.” The director of pharmacy practice at Medco testified that this
rule was “zero tolerance.” Torres-Skair has not pointed to any evidence in the
record where Medco used a PFP to address a violation of a Work Rule.
In view of the foregoing, the fact that Torres-Skair was not placed on a PFP
does not indicate either (1) that she was treated differently than Capito, because
there is no evidence that Medco believed that Capito also had hung up on a
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customer; or (2) that Medco violated its own policies. Consequently, the district
court did not err in finding that Torres-Skair had failed to establish a prima facie
claim based on her placement on administrative leave and subsequent termination.
In any case, even assuming that Torres-Skair established a prima facie case
of pregnancy discrimination, she failed to show that the legitimate, non-
discriminatory reasons proffered by Medco were pretextual. Medco offers three
such reasons: (1) Torres-Skair hung up on a customer; (2) she refaxed prescription
requests; and (3) she avoided calls. Medco claims that these reasons are not
independent because each contributed in some way to the decision to terminate
Torres-Skair.
We might be more inclined to disturb the district court’s ruling if Medco
relied on refaxing alone. Torres-Skair presented evidence that other pharmacists
engaged in refaxing, that Powrie told pharmacists how to refax, and that refaxing
generally, at least under certain circumstances, was an accepted practice that would
generate an additional prescription credit.
As it stands, however, Medco provided multiple, intertwined, non-
discriminatory reasons for its administrative leave and termination decisions.
Torres-Skair has not rebutted Medco’s other reasons, particularly Medco’s belief
that she inappropriately terminated a call with a customer. Torres-Skair argues that
Medco’s invocation of Work Rule 11 was pretextual because Medco also had in
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place a Workplace Harassment Policy, which prohibited employees or customers
from engaging in “name calling, slurs, or derogatory remarks,” and “verbal abuse
or ridicule based on some personal group characteristic.” If Work Rule 11
required her to stay on the phone while the customer referred to her as a “dot
head,” she asserts, then it violated the harassment policy.
Although Torres-Skair attempts to frame the harassment policy and Work
Rule 11 as directly in conflict, she has not presented any evidence supporting that
contention. Unrebutted testimony established that hanging up on a patient was
never appropriate, and Medco policy listed hanging up on a patient as a ground for
termination, potentially without prior warning. Nowhere in the harassment policy
does it authorize an employee to terminate a call when she believes she is the
subject of harassment. Rather, the policy provides that an employee who believes
she has been the victim of harassment should report the incident to her supervisor
or someone in management, which will trigger an investigation. Nor has Torres-
Skair presented a similar instance in which Medco retained a non-pregnant
employee who terminated a call because of a derogatory remark.
Torres-Skair’s own conviction that she did not inappropriately hang up on
the customer in violation of Medco rules is insufficient to show pretext. She has
presented no evidence that Medco did not honestly and in good faith believe that
she violated a rule. See Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)
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(“The inquiry into pretext centers upon the employer’s beliefs, and not the
employee’s own perceptions of his performance.”).
Finally, Torres-Skair contends that the temporal proximity of her request for
FMLA leave and the administrative leave and termination decisions shows that
Medco’s reasons were pretextual. However, the report that served as the basis for
her termination was requested by a manager who was not Torres-Skair’s supervisor
and prepared by Schumm, another manager who also was not Torres-Skair’s
supervisor, and there is no evidence indicating that either had knowledge of
Torres-Skair’s request for FMLA leave or even her pregnancy when those actions
were taken. 4 Yet the only evidence in the record indicates that the conference call
and subsequent termination were predicated upon the findings of the report written
by Schumm. Nor is there evidence that Narducci or Bannon, the relevant decision
makers, had knowledge of Torres-Skair’s request for FMLA leave before the
conference call during which Torres-Skair was placed on administrative leave.
For these reasons, Torres-Skair has not presented sufficient circumstantial
evidence by which a jury could reasonably infer that Medco’s non-discriminatory
reasons were pretextual or that Medco otherwise was motivated to discriminate
against her on the basis of her pregnancy.
4
To the extent that Torres-Skair argues that Medco violated the FMLA, she did not raise
such a claim before the district court and we decline to consider her arguments with respect to
any purported violations of the FMLA on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (holding that issues not raised in the district court and raised
for the first time on appeal will not be considered).
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B. Retaliation
Torres-Skair also argues that she sufficiently established a retaliation claim.
Torres-Skair’s apparent theory of retaliation in this case is as follows: (a) she
complained about Powrie’s pregnancy comments; (b) because of the complaint,
Powrie received “coaching” from management on “addressing employee concerns,
sharing employee information, and sensitivity around health related topics”; (c) in
retaliation, Powrie failed to intercede on Torres-Skair’s behalf during the May 20
conference call by corroborating that Torres-Skair was having computer issues;
and (d) as a result, Torres-Skair was placed on administrative leave and
subsequently terminated.
Title VII prohibits employers from retaliating against an employee because
she has opposed acts made unlawful by that law. 42 U.S.C. § 2000e-3(a). In order
to establish a prima facie case of retaliation, the plaintiff may show that (1) she
engaged in statutorily protected expression; (2) she suffered a materially adverse
action; and (3) a causal link existed between the events. Dixon v. The Hallmark
Cos., 627 F.3d 849, 856 (11th Cir. 2010). While this action was pending in the
district court, the Supreme Court clarified the standard for causation in retaliation
cases: the plaintiff must show that the adverse action would not have occurred but-
for the protected activity. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133
S. Ct. 2517 (2013).
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The district court correctly concluded that Torres-Skair failed to establish a
prima facie case of retaliation through circumstantial evidence. Even assuming
that Torres-Skair engaged in statutorily protected conduct, she has not presented
sufficient evidence from which a reasonable jury could find a causal connection
between her complaints and the adverse actions. For the reasons we have
elaborated above, it is nothing more than mere speculation to suggest that, if
Powrie had spoken up, Torres-Skair would not have been placed on administrative
leave or discharged. Any purported causal connection between the protected
conduct and the adverse actions is far too indirect and attenuated to be actionable.
Similarly, Torres-Skair has not shown that her complaint after she was placed on
administrative leave was the cause of her termination. Consequently, based on the
totality of the evidence before us, the district court did not err in finding that
Torres-Skair failed to state a prima facie claim of retaliation.
IV.
In short, we affirm the district court’s grant of summary judgment in favor
of Medco on all counts of the complaint.
AFFIRMED.
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