Nancy L. Barnette v. Federal Express Corproation , 491 F. App'x 176 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10969
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cv-00471-UA-SPC
NANCY L. BARNETTE,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
FEDERAL EXPRESS CORPORATION,
a Foreign Corporation,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 9, 2012)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Nancy Barnette appeals the district court’s grant of summary judgment in
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favor of her former employer, Federal Express Corporation (“FedEx”), on her
gender discrimination claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and Lee County Ordinance No. 00–18. She argues that (1)
the evidence she offers establishes a prima facie case of gender discrimination, (2)
sufficient circumstantial evidence demonstrates that FedEx’s proffered reasons for
her termination were pretext for gender discrimination, (3) FedEx was not entitled
to rely on reasons supplied by her supervisor regarding the termination, (4) the
district court should have credited the legal determinations made by Lee County’s
Office of Equal Opportunity, and (5) her case should survive summary judgment
under a “mixed motive” analysis. After review of the briefs and the record, we
affirm.
I. Background
A.
Barnette began working as a driver for FedEx in 1998. In July 2002, she
transferred to FedEx’s Fort Myers facility where Jose Chardon was her supervisor.
In November 2002, Barnette was promoted to a full-time position as a “swing
driver”—an employee that filled in to cover the routes of drivers who were absent
that day. In August 2004, Chardon issued a “Performance Reminder” to Barnette
because she had been involved in two preventable accidents within a twelve-month
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period. The letter to Barnette stated that if she had “another preventable
accident/occurrence within a 12-month period” she would be issued another
Performance Reminder and could receive “severe disciplinary action up to and
including termination.” Barnette claims that although she received and signed the
document, she did not read it. Other than the issuance of the Performance
Reminder, Barnette had a good track record at FedEx and received positive
reviews.
The termination that spurred this lawsuit occurred on November 16, 2004.
Barnette alleges that she was fired because she is a female. FedEx avers that she
lost her job because she violated FedEx’s Acceptable Conduct Policy. Both parties
also give very different accounts of the incident on November 9, 2004—the
incident that allegedly underlies this termination decision.
We will begin with Barnette’s recounting of the events of November 9,
2004. Barnette was driving her assigned route that morning when suddenly an
oversized avian struck the passenger window of her truck. When later describing
the unexpected ornithological occurrence, Barnette claimed that a “pterodactyl” or
“some kind of big bird” had collided with her vehicle. Barnette alleges that she did
not report the encounter with the bird immediately “as it was not customary or
required for drivers to do so.” She claims that “the record evidence shows that
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accident reporting was discretionary” and that “Chardon routinely permitted his
drivers to exercise independent judgment in the reporting of accidents.” Barnette
supports those propositions by citing to Chardon’s deposition where he states “if
an employee was involved in an accident, they have to report it immediately
without moving the truck.” She also cites to the depositions of manager Ariel
Mendez and Chardon where they explained that if a driver phoned in but was
unable to contact a manager, the driver should contact dispatch or someone else at
the company and have that person locate and inform the manager. Although the
record contains some evidence that Chardon or other managers had discretion
about how to handle investigation of an accident, nowhere does the evidence
indicate that an employee had any discretion about whether to report an accident.1
Barnette estimates that about an hour elapsed between the aviary incident
and the eventual caving-in of her window. After the window shattered inward,
Barnette pulled over outside the gated entrance to the Kinzie Island Court (“Kinzie
Court”) subdivision to clean up the glass. A landscaper then approached Barnette
and asked her if she had hit the gate to the subdivision. She responded that she had
1
Mendez was questioned about some employees who had not reported accidents about which
they were unaware. We think it rather obvious that not reporting an accident that you do not
know exists is not an exercise of discretion. Mendez was also posed a hypothetical about what a
driver should do about reporting if she were stuck in heavy traffic and “unable” to pull over;
Mendez replied that FedEx policy required an employee to “report it as soon as it’s safe to do
so” and indicated that FedEx also had a safety manual. The fact that an employee was expected
to execute his immediate duty to report in a non-dangerous manner that comported with the
safety manual does not indicate that the employee had “discretion.”
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not and explained that the damage was bird-inflicted. The landscaper offered to
assist Barnette in gathering up the glass, but she declined. Barnette then drove to
another location where she could obtain better cellular phone reception and called a
FedEx dispatcher to report that her window had been broken.2
Barnette was then confronted by Officer Holovacko, who requested that
Barnette return to Kinzie Court with him because someone had reported that a
FedEx truck had smashed into the automatic gate at the entrance. Barnette called
Chardon and advised him of the situation. When Barnette and Holovacko returned
to the gate, Barnette examined her truck and observed brown paint chips on the lug
nuts of her right front wheel. The brown gate to Kinzie Court had corresponding
scrape marks near the bottom. It was concluded that the gate did indeed close on
Barnette’s vehicle, but Officer Holovacko declined to issue Barnette a traffic
summons because the inward-opening Kinzie Court gate often gives new visitors
to the area difficulty.
Chardon then called Barnette, asked for directions to Kinzie Court, and
requested that she finish her route and then return to meet him at the FedEx station.
When Barnette spoke with Chardon at the station, he asked her to submit a written
2
Interestingly, Barnette attaches her Equal Employment Opportunity (“EEO”) Complaint as an
exhibit in support of her motion for summary judgment, and in that EEO Complaint she stated
that she called dispatch before the window shattered completely, before she entered Kinzie Court
again, and before she spoke with the landscaper.
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statement about the occurrences of the day, then informed her that she was
suspended pending an investigation. He handed her a letter that explained that she
was being investigated for a “possible violation of the Acceptable Conduct Policy.”
On November 16, Barnette was informed that she was terminated for violating the
Acceptable Conduct Policy. Her termination letter was signed by Chardon.
Barnette asserts that she was provided with no other documents explaining the
motivation behind the termination decision.
On November 18, Barnette filed a grievance form, disputing her termination.
One of the questions on the form inquires whether there were witnesses to the
complaint. Barnette checked the “yes” box and listed as witnesses (1) Officer
Holovacko, and (2) “swing driver—Jose Vill[e]gas, reference to the gate.”3 In
response to the question “Have Other Employees Received Different Treatment for
The Same Issue?” Barnette responded “yes.” On the line requesting more detail
regarding other employees being treated differently for the same issue, Barnette
stated that Joe Steeves was only suspended five days for failure to report an
accident. Andre Richardson also had an unreported accident, she explained, and
although it was his fourth accident, he was suspended for five days and reassigned.
Barnette also completed the portion of the form asking her to list the reasons why
3
In her brief, Barnette explains that Villegas had knowledge of the lack of cellular phone
reception on Sanibel Island. In her step two grievance packet, Barnette stated that Villegas
offered to testify regarding the gate’s malfunctions.
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she felt that management had behaved unfairly.
FedEx responded to the grievance form, stating that Barnette had been
terminated for a “violation of the Acceptable Conduct Policy, 2–5, specifically, for
failure to report an accident.” FedEx elaborated that after consulting “eye
witnesses, along with the Officer’s report,” it had determined that Barnette “did, in
fact, hit the gate and then left the scene and failed to report that to management
before further operating a Company vehicle.” Barnette filed another grievance
packet, again appealing the termination decision and also alleging that she had
been discriminated against on the basis of gender. In response to the
discrimination allegations, FedEx deferred Barnette’s case pending completion of
an internal Equal Employment Opportunity (“EEO”) investigation. Barnette was
forwarded the necessary EEO packet, which she completed. On February 25,
2005, Bobby Newell, managing director of FedEx’s South Florida District,
responded to Barnette that her claim of discrimination had been investigated and
the “investigation did identify some practices that may be inconsistent with our
policies, culture and philosophy.” On March 14, 2005, Barnette was informed that
her second grievance form had been reviewed, but that the termination decision
would be upheld because (1) she had failed to report a vehicle accident or
occurrence, (2) despite her “good work history with the Company” she had
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“documented . . . vehicle accidents,” and (3) no evidence was found to support her
discrimination allegations. On July 7, 2005, Barnette then filed a charge with the
Lee County Office of Equal Opportunity.
FedEx’s statement of the events of November 9, 2004 is that around 12:15
p.m. that day, Barnette called a dispatcher to report the “pterodactyl” incident.
That same day, Ariel Mendez, a senior manager of the Fort Myers station, received
a call from an acquaintance of his who was a member of the Sanibel Police
Department. The police officer informed Mendez that a female FedEx driver had
struck the gate at Kinzie Court on Sanibel Island and fled the accident scene.
Because Mendez was out of the office on November 9, he called Chardon to relay
the information that he had received from the police. Chardon replied that Barnette
was the driver on the Sanibel Island route that day and that she had just called to
report a pterodactyl crash. Mendez instructed Chardon to go to Sanibel and
investigate. Following the exchange with Mendez, Chardon received a call from
Barnette, who explained that she had just been approached by the police regarding
a possible collision with the subdivision gate. Barnette called again later to
confirm that she had indeed struck the gate.
Chardon investigated the incident by photographing both the gate and
Barnette’s truck and interviewing Jeff Hartman—the landscaper who had offered
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to assist Barnette. Hartman had entered through the Kinzie Court gate and then
heard a loud crash. When he returned to the gate, he found that the gate had
collided with Barnette’s truck and shattered the glass of a window. Hartman
helped Barnette clean up the glass and put the gate back on its hinges. Hartman
told Chardon that after Barnette hit the gate, Hartman had joked with her that she
should just tell her manager that a bird had hit her truck. Hartman also provided a
signed, typed statement about the incident that stated the same.4 Mendez,
Chardon’s supervisor, reviewed the photographs taken by Chardon, as well as the
written statements of Barnette, Hartman, and the dispatcher. Mendez also
personally inspected Barnette’s vehicle. After reviewing the information that they
had collected, Chardon and Mendez concluded that Barnette had hit the Kinzie
Court gate, failed to report the accident, and concocted the false “pterodactyl” story
to explain how her truck had been damaged. Chardon and Mendez consulted with
a Human Resources advisor and the FedEx Managing Director and ultimately
determined that Barnette should be terminated for those actions.
B.
Barnette filed claims against FedEx alleging that she had been discriminated
against on the basis of gender, in violation of Title VII and Lee County Ordinance
4
Barnette contests the validity of this statement and argues that it may be forged. However,
Hartman later made a declaration under oath that he had written and signed the statement, and in
his deposition he recounted a version of the facts consistent with those set forth in the statement.
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No. 00–18.5 Barnette stated that she had not violated the Acceptable Conduct
policy and that her termination was “based upon her gender.” She argued that
“numerous” male employees had been involved in more frequent and more serious
accidents than she had.
Barnette and FedEx both filed motions for summary judgment; the district
court denied the former and granted the latter. The district court first found that the
comparators that Barnette had offered were not substantially similar to her and thus
she had not established her prima facie case. Second, it found that even if the
comparators had been similarly situated, FedEx had a legitimate,
nondiscriminatory reason for her termination. Therefore, Barnette needed to show
that FedEx’s stated reason for termination was mere pretext for illegal
discrimination. Because FedEx was entitled to rely on Chardon’s statements and
was entitled to be informed by the photographs and the testimony by the
landscaper Hartman, FedEx acted reasonably in inferring from the evidence that
Barnette had lied about the events of November 9, 2004. Barnette now appeals the
district court’s order.
II. Discussion
We review de novo a district court’s grant of summary judgment. Holloman
5
Barnette conflates her Title VII and Ordinance No. 00–18 claims, and the district court found
that both had the same elements.
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v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), Holloman, 443
F.3d at 836–37.
Title VII makes it unlawful for an employer “to discharge any individual . . .
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a). A plaintiff alleging a violation under Title VII bears the
burden of proving that an employer illegally discriminated against her. Hinson v.
Clinch Cnty., 231 F.3d 821, 827 (11th Cir. 2000). Where, as here, an employee
attempts to demonstrate discriminatory intent through circumstantial evidence, we
utilize the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 1824–25 (1973). See Maynard v.
Bd. of Regents of the Div. of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289
(11th Cir. 2003). Under this framework, Barnette must first establish a prima facie
case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253,
101 S. Ct. 1089, 1094 (1981). A plaintiff typically accomplishes that by showing
that (1) she is a member of a protected class; (2) she was qualified for the position
that she held; (3) she suffered an adverse employment action; and (4) she was
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treated less favorably than a similarly situated individual outside her protected
class, see Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.
2010), but the prima facie case standard is “not inflexible,” Burdine, 450 U.S. at253 n.6, 101 S. Ct. at 1094 n.6. Once a plaintiff has established a prima facie case
of discrimination, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the employment decision. McDonnell Douglas, 411
U.S. at 802, 93 S. Ct. at 1824. If the employer presents such a reason, the plaintiff
can only prevail by proving that the reason offered is merely pretextual. Id. at 804,
93 S. Ct. at 1825.
In her motion for summary judgment and her response to FedEx’s motion
for summary judgment, Barnette insisted that she had established a prima facie
case by offering evidence of comparators—similarly situated male employees who
had been treated more favorably than she.6 A comparator must be similarly
situated to the plaintiff in all relevant respects. Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997) (per curiam) (citations omitted). “In order to be considered
‘similarly situated,’ the compared employees must have been ‘involved in or
accused of the same or similar conduct,’ yet ‘disciplined in different ways’ for that
conduct.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 n.17 (11th Cir.
6
FedEx does not dispute that Barnett is a qualified member of a protected class who suffered an
adverse employment action.
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2011) (emphasis added) (citing Holifield, 115 F.3d at 1562). Only two of the six
male employees that Barnette offers as comparators were disciplined for failure to
report an accident, and both of those employees were found to have been unaware
that their accidents occurred. None of the employees were accused of lying about
the existence of or events surrounding an accident. Therefore, as the district court
found, these comparators are not similar enough to Barnette to provide an adequate
basis for her claims.
On appeal, Barnette also points to other evidence in the record that she
argues establishes a prima facie case when viewed cumulatively. First, she states
that Chardon conducted an insufficient investigation of her accident and that he
should have obtained the police report and interviewed more witnesses. Second,
she contends that FedEx’s proffered reason for her termination changed over time.
Although FedEx always maintained that Barnette was fired for a violation of the
Acceptable Conduct Policy, she seems to object to the company’s elaboration on
that reasoning and its provision of more specifics about what part of the policy she
failed to observe. Third, Barnette claims that Chardon had a “pattern and practice
of discriminating against women.”
Barnette supports this third allegation with an assortment of evidence. In
April 2003, Chardon exposed his pubic region to his co-workers at a softball
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tournament; this incident was reported to management during the investigation of
Barnette’s current claim. In 2004, Monica Fairas filed an EEO complaint alleging
that Chardon had discriminated against her on the basis of gender and pregnancy.
After investigating that claim, Managing Director Newell found that of the eleven
women interviewed, two women (one of which was Farias) felt that Chardon may
have discriminated against them. Five females and one of the four males
interviewed expressed that they felt disrespected by Chardon. Barnette was
interviewed, but she did not report feeling that Chardon discriminated against her.
Newell’s report concluded that the majority of the evidence showed that Chardon’s
conduct was “inappropriate not discriminatory,” and Chardon was instructed to
attend diversity training. During the 2005 investigation of Barnette’s EEO
complaint, two women reported that Chardon treated women differently than men,
but the majority said he did not. Comments were made by both male and female
employees that Chardon “is not a people person,” “lacks tact,” and “just makes you
feel as though you’re a failure.” In 2005, Chardon was accused of accessing the
records of another female manager, an incident for which he received discipline.
In 2007, Chardon had a romantic relationship with an hourly employee, which was
against policy and contributed to his termination that year.
Even if we were to assume that this circumstantial evidence establishes a
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prima facie case, FedEx provided a legitimate, nondiscriminatory reason for
Barnette’s termination, and Barnette has failed to counter that with a sufficient
showing of pretext. In order to prove pretext, a plaintiff must “demonstrate that
the proffered reason was not the true reason for the employment decision . . . by
persuading the court that a discriminatory reason more likely motivated the
employer or . . . by showing that the employer’s proffered explanation is unworthy
of credence.” Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. On November 9,
2004, Mendez was informed by a police officer that a FedEx employee struck the
Kinzie Court gate and drove away from the scene. At approximately that same
time, a FedEx dispatcher received a call from Barnette, who was driving the route
near and around that subdivision, stating that she had been hit by a large bird or a
“pterodactyl.” Soon afterwards, she phoned again to say that she had been
contacted by a police officer and it appeared that she had hit the Kinzie Court gate.
When Chardon drove to the scene of the accident, he spoke with a landscaper who
had witnessed Barnette hit the gate; the landscaper claimed that he joked with
Barnette that she should tell her manager that a bird had hit her vehicle. Chardon
and Mendez reasonably determined, on the basis of these facts and other evidence
collected, that Barnette had struck the gate, left the scene without reporting the
incident, and concocted the bird story to cover up the accident. Barnette was then
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terminated on the basis of a violation of the Acceptable Conduct Policy, which
states that failure to report an accident and falsification of company documents
both constitute types of misconduct that may be punishable by termination.
Barnette presents no evidence other than her own unsubstantiated allegations that
would permit an inference that her managers did not truly believe that she had lied
about the November 9, 2004 incident and failed to report an accident.
Barnette argues that FedEx’s offered reason does not deserve credence
because it has changed over time, but FedEx has maintained that the motivation
behind her termination was a violation of the conduct policy. Although FedEx
later provided more specifics about the type of violation it found, those specifics
were entirely consistent with its earlier stated reasons. Barnette also fails to offer
enough evidence to support a finding that her managers had more likely than not
acted with a discriminatory motive. Although the record may demonstrate that
Chardon was offensive and had conducted himself inappropriately, or could be an
unpleasant supervisor, there is little to show that gender discrimination motivated
the termination of Barnette. Therefore, because Barnette has not presented enough
evidence to allow a finding of pretext, the district court’s grant of summary
judgment was proper.7
7
Barnette also argues under a “cat’s paw” theory of liability that Chardon was biased; that his
bias infected his report about her incident on November 9, 2004; and that FedEx improperly
relied on the biased facts and recommendations in Chardon’s report. See generally Staub v.
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Barnette’s other claims in this appeal also fail. First, she contends that if the
court were to employ a “mixed motive” analysis, her claims would survive
summary judgment. This argument was not raised below and thus is waived. See
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
Second, she argues that the district court “completely failed to consider” the
evidence in the Lee County Office of Equal Opportunity’s investigative files and
disregarded its finding that discrimination had occurred. Once a case reaches
district court, the claims of both parties are reviewed de novo; EEOC findings may
be relevant, but their probative value varies. Moore v. Devine, 767 F.2d 1541,
1550–51 (11th Cir. 1985). EEOC findings are not binding on the district court. Id.Here, the Final Investigative Report in the findings of facts recited Barnette’s own
statement that a bird hit her truck around 10:40 in the morning, but she did not call
to report the incident immediately because she was concerned about being late to
other stops on her route. The Lee County investigator concluded that because
Barnette reported the incident on the date it occurred, she had not violated FedEx
policy and thus her termination was discriminatory. Yet the record clearly reveals
that FedEx policy required employees to immediately report accidents or incidents.
Proctor Hosp., 562 U.S. __, 131 S. Ct. 1186 (2011). However, the record evidence does not
support a finding that Chardon conducted a biased investigation or filed a biased report and that,
despite Mendez’s independent investigation, such a biased report was a causal factor in FedEx’s
decision to terminate Barnette; therefore, this claim fails.
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The district court committed no error in making a de novo determination of the
correct interpretation of FedEx’s policy and ignoring the investigator’s finding of
discrimination that relied on an incorrect reading of that policy. There was no
error in the district court’s treatment and use of the Lee County investigator’s
report.
AFFIRMED.
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