USCA11 Case: 20-14351 Date Filed: 11/16/2021 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14351
Non-Argument Calendar
____________________
TYNISHA KEY,
Plaintiff-Appellant,
versus
CENTRAL GEORGIA KIDNEY
SPECIALISTS PC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cv-00253-TES
____________________
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2 Opinion of the Court 20-14351
Before BRANCH, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Tynisha Key (“Plaintiff”) appeals the district court’s grant of
summary judgment in favor of her former employer, Central Geor-
gia Kidney Specialists PC (the “Practice”). In this civil action, Plain-
tiff asserted against the Practice a claim for pregnancy discrimina-
tion: a violation of Title VII, as amended by the Pregnancy Dis-
crimination Act (“PDA”), 42 U.S.C. §§ 2000e(k), 2000e-2. No re-
versible error has been shown; we affirm.
I. Background
Plaintiff began working as a receptionist for the Practice in
January 2016. In early 2017, Plaintiff transitioned to a full-time po-
sition as a Medical Assistant. Plaintiff later requested to work part-
time so she could attend a nursing program; Plaintiff’s part-time
status took effect in May 2018. As a part-time employee working
fewer than 24 hours per week, Plaintiff was ineligible for employee
benefits and accrued no paid time off.
In December 2017, the Practice amended its employee hand-
book to include a “point system” for unexcused absences from
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20-14351 Opinion of the Court 3
work. Under the point system, an employee would receive a cer-
tain number of points each time she was tardy, absent, or told the
Practice on short notice that she was not coming to work. The
employee handbook established a progressive discipline system for
employee absences, starting with a verbal warning when an em-
ployee accrued 10 points, a written warning at 15 points, a 3-day
suspension at 18 points, and termination of employment at 20
points.
Between January and October 2018, Plaintiff accumulated
14 poor-attendance points. In early November 2018, the Practice
reset all employees’ points (including Plaintiff’s) to zero. By the
end of December 2018, Plaintiff had accrued 11 points. Plaintiff
then reached 20 points by mid-January 2019. By the time Plaintiff’s
employment was terminated in March 2019, Plaintiff had 36 points.
The Practice, however, never issued Plaintiff a formal verbal or
written warning or imposed other discipline as authorized under
its attendance policy.
Plaintiff learned she was pregnant in September 2018. The
Practice’s Clinical Manager and Plaintiff’s immediate supervisor
(Debra Haywood) found out about Plaintiff’s pregnancy in mid-
January 2019. The Practice Administrator (Jennifer Carr) became
aware of Plaintiff’s pregnancy in early February.
On 4 March 2019, Carr called a meeting with Plaintiff and
with Haywood. Among other things, Carr and Haywood asked
about Plaintiff’s future work plans and explained that the Practice
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4 Opinion of the Court 20-14351
could not guarantee Plaintiff’s job would be available when Plain-
tiff returned from taking time off to have her baby. 1
At the 4 March meeting, Carr and Haywood also discussed
with Plaintiff the possibility of cutting Plaintiff’s Thursday after-
noon shift because no doctor was scheduled to see patients during
that time. To make up for the lost hours, Carr and Haywood of-
fered Plaintiff a shift on Monday morning. Plaintiff declined the
Monday shift because it conflicted with Plaintiff’s personal sched-
ule.
On 8 March, Plaintiff submitted a written request to take un-
paid leave between 13 May and 5 August 2019 to have her baby.
On 13 March 2019 (a Wednesday), Plaintiff received written
notice of a revised work schedule. The new schedule eliminated
officially Plaintiff’s Thursday afternoon shift. Plaintiff refused to
sign the document.
The next day (Thursday, 14 March), Plaintiff reported to
work despite having been told she was not scheduled to work that
day. When Carr learned that Plaintiff was at the office, Carr or-
dered Plaintiff to leave. Plaintiff asked to speak with one of the
doctors. Plaintiff says she believed the doctors had authority over
Carr and, thus, the ability to overrule Carr’s scheduling decision.
1 At all times pertinent to this appeal, the Practice employed fewer than 50
employees and, thus, fell outside the scope of the Family Medical Leave Act,
29 U.S.C. §§ 2601 et seq. (“FMLA”). Nor did the Practice have an internal
maternity leave policy.
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20-14351 Opinion of the Court 5
Carr said “no.” Carr then instructed Plaintiff to turn in her office
key. Plaintiff did so and left the office.
The following morning -- less than two hours before Plain-
tiff was scheduled to work -- Plaintiff sent Carr and Haywood a text
message notifying them that Plaintiff was not coming to work that
day. Carr spoke to Plaintiff on the phone later that day. Carr told
Plaintiff that, if Plaintiff failed to report to work on Monday, Carr
would treat the absence as a resignation of Plaintiff’s employ-
ment. 2
Plaintiff reported to work as scheduled on Monday. Plain-
tiff’s employment was then terminated the next day, on 19 March
2019. The Practice reassigned Plaintiff’s duties to other employees
and hired no new staff to replace Plaintiff.
Plaintiff filed a charge of discrimination with the Equal Em-
ployment Opportunity Commission, which later issued Plaintiff a
notice of right to sue. Plaintiff then filed this civil action. Plaintiff
asserted that the Practice discriminated against her based on her
pregnancy, in violation of Title VII and the PDA.
The district court granted the Practice’s motion for sum-
mary judgment. The district court first determined that Plaintiff
failed to establish a prima facie case of unlawful pregnancy discrim-
ination under the burden-shifting framework set out in McDonnell
2 Under the Practice’s attendance policy, two consecutive unexcused absences
are considered a voluntary resignation.
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6 Opinion of the Court 20-14351
Douglas Corp. v. Green,
411 U.S. 792 (1973). 3 The district court
also determined that Plaintiff failed to produce evidence sufficient
to demonstrate unlawful pregnancy discrimination under a “con-
vincing mosaic” theory.
II. Discussion
A.
We review de novo the district court’s grant of summary
judgment; we “view all evidence and make all reasonable infer-
ences in favor of the party opposing summary judgment.” Chap-
man v. AI Transp.,
229 F.3d 1012, 1023 (11th Cir. 2000) (en banc).
Summary judgment is appropriate when the record shows no gen-
uine dispute of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).
The district court cited to and applied correctly the pertinent
summary judgment standard. We reject Plaintiff’s contention that
the district court impermissibly drew inferences in favor of the
Practice. The standard for creating a genuine dispute of material
fact requires courts to “make all reasonable inferences” -- not all
3 On appeal, Plaintiff raises no challenge to the district court’s ruling that Plain-
tiff failed to show unlawful discrimination under the McDonnell Douglas
framework. That issue is, thus, not before us on appeal.
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20-14351 Opinion of the Court 7
possible inferences -- in favor of the non-moving party. See Chap-
man,
229 F.3d at 2023 (emphasis added).
B.
Title VII makes it unlawful for a private employer to dis-
criminate against an employee based on the employee’s sex. See
42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act
amended Title VII to provide that discrimination “because of sex”
or “on the basis of sex” includes discrimination “because of or on
the basis of pregnancy, childbirth, or related medical conditions.”
See 42 U.S.C. § 2000e(k).
To survive a motion for summary judgment, a plaintiff as-
serting a claim for unlawful discrimination in violation of Title VII
“must present sufficient facts to permit a jury to rule in her favor.”
Lewis v. City of Union City,
918 F.3d 1213, 1220 (11th Cir. 2019)
(en banc). A plaintiff may satisfy her burden in three ways: (1) by
presenting direct evidence of discriminatory intent; (2) by satisfying
the McDonnell Douglas burden-shifting framework; and (3) by pre-
senting “a ‘convincing mosaic’ of circumstantial evidence that war-
rants an inference of intentional discrimination.”
Id. at 1220, n.6.;
see Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir.
2011) (addressing the “convincing mosaic” standard). Given the
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8 Opinion of the Court 20-14351
case’s history, we need address only whether Plaintiff has shown
unlawful discrimination under the “convincing mosaic” standard. 4
“A ‘convincing mosaic’ may be shown by evidence that
demonstrates, among other things, (1) suspicious timing, ambigu-
ous statements . . ., and other bits and pieces from which an infer-
ence of discriminatory intent might be drawn, (2) systematically
better treatment of similarly situated employees, and (3) that the
employer’s justification is pretextual.” Lewis v. City of Union City,
934 F.3d 1169, 1185 (11th Cir. 2019) (quotations omitted). To es-
tablish pretext, “a plaintiff must demonstrate ‘such weaknesses, im-
plausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a rea-
sonable factfinder could find them unworthy of credence.” Gogel
v. Kia Motors Mfg. of Ga., Inc.,
967 F.3d 1121, 1136 (11th Cir. 2020)
(en banc) (in the context of finding pretext under McDonnell Doug-
las). In other words, a plaintiff must produce evidence “sufficient
to permit a reasonable factfinder to conclude that the reasons given
4 On appeal, Plaintiff argues that this Court -- instead of using the “convincing
mosaic” standard -- should analyze Plaintiff’s discrimination claim under the
“evidence as a whole” standard described in the Seventh Circuit’s decision in
Ortiz v. Werner Enters., Inc.,
834 F.3d 760 (7th Cir. 2016). Plaintiff, however,
relied expressly on the “convincing mosaic” standard before the district court.
Because Plaintiff now argues for the first time that a different standard should
apply, that argument is not properly before us. See Access Now, Inc. v. Sw.
Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue not raised in the
district court and raised for the first time in an appeal will not be considered
by this court.”).
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20-14351 Opinion of the Court 9
by the employer were not the real reasons for the adverse employ-
ment decision.” Chapman,
229 F.3d at 1024.
The Practice says it terminated Plaintiff’s employment based
on a lack of work for Plaintiff, Plaintiff’s habitual attendance issues,
and Plaintiff’s rude and disrespectful conduct toward Carr: matters
that could justify a termination.
Plaintiff contends that the Practice’s proffered reasons for fir-
ing her are a pretext for unlawful pregnancy discrimination as evi-
denced by (1) the suspicious timing of the termination of Plaintiff’s
employment and (2) the Practice’s shifting reasons for firing Plain-
tiff.
1. Suspicious Timing
About timing, Plaintiff says the Practice knew about the pur-
ported lack of work and about Plaintiff’s poor attendance record
for months but did nothing to address these concerns until after
Plaintiff requested time off to have her baby. Plaintiff says the tim-
ing of her firing -- months after the supposed justifications arose
and only days after she sought time off -- supports an inference that
the Practice terminated her employment based on Plaintiff’s preg-
nancy and not because of the Practice’s asserted justifications.
When viewed in the light of the record as a whole -- includ-
ing Plaintiff’s unprofessional conduct on the days immediately pre-
ceding Plaintiff’s firing -- Plaintiff’s evidence of “suspicious” timing
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10 Opinion of the Court 20-14351
is insufficient to allow a jury to infer reasonably that the Practice’s
asserted reasons are a pretext for unlawful discrimination.
On 13 March, Plaintiff was given official notice that the Prac-
tice was eliminating Plaintiff’s Thursday afternoon shift: a schedule
change already discussed with Plaintiff on 4 March before Plaintiff
asked for time off. Plaintiff, however, refused to sign the document
acknowledging the new schedule. Plaintiff then reported for her
Thursday shift the next day in direct disregard of the new schedule.
Carr ordered Plaintiff to leave the premises. Plaintiff did not then
leave. Plaintiff asked to speak with one of the doctors -- a person
whom Plaintiff believed could overrule Carr’s scheduling decision.
Plaintiff’s next interaction with Carr came the next morning when
Plaintiff notified Carr less than two hours before Plaintiff’s sched-
uled shift that Plaintiff was not coming to work.
In the light of this evidence of Plaintiff’s acts of defiance and
insubordination on March 13 and 14, followed immediately by an-
other instance of Plaintiff’s excessive absenteeism on 15 March,
Plaintiff has failed to satisfy her burden of showing that the Prac-
tice’s stated reasons simply were not the real reasons for firing
Plaintiff. That Carr ordered Plaintiff to turn in her office key before
leaving on 14 March further supports that Plaintiff’s conduct that
day was an important motivating factor in the ultimate decision to
terminate Plaintiff’s employment.
Plaintiff seeks to equate her rude and insubordinate behav-
ior on March 13 and 14 to an earlier time when Plaintiff was rude
to Carr in February 2019. According to Plaintiff, that she was not
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20-14351 Opinion of the Court 11
disciplined for her rude behavior in February 2019 (before request-
ing time off) and then fired for rude behavior in March 2019 (after
requesting time off) is evidence of pretext.
During the February 2019 incident, Plaintiff called Carr
about a discrepancy in Plaintiff’s paycheck. Carr explained to Plain-
tiff that the Practice had deducted an amount from Plaintiff’s
paycheck to correct an earlier overpayment. Plaintiff testified that
Plaintiff was upset on the phone, but that Carr calmed Plaintiff
down and helped Plaintiff understand what had happened. Plaintiff
then apologized to Carr the next day for Plaintiff’s conduct during
the phone conversation.
During the March 2019 encounter -- unlike the February
2019 phone call -- Plaintiff refused to accept Carr’s explanation for
the complained-of managerial decision, acted in direct defiance of
Carr’s instructions, and challenged Carr’s authority. And instead
of offering Carr an apology the next day, Plaintiff notified Carr less
than two hours in advance of Plaintiff’s scheduled shift that Plaintiff
would not report to work that day. Given the material differences
between the February 2019 phone call and the March 2019 inci-
dent, that Plaintiff experienced differing consequences in response
to her episodes of rudeness is no evidence from which a jury could
infer pretext. Instead, the record demonstrates that the severity of
the discipline following the March 2019 incident -- the second suc-
cessive incident of confrontation and rudeness -- corresponded to
the degree of Plaintiff’s unprofessional conduct during that en-
counter, not to Plaintiff’s request for time off.
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12 Opinion of the Court 20-14351
2. Shifting Reasons
Plaintiff also contends that the Practice’s failure to articulate
clearly and consistently the reasons for terminating her employ-
ment demonstrate that the Practice’s stated reasons are a pretext
for discrimination. In support of this argument, Plaintiff relies on
our decisions in Hurlbert v. St. Mary’s Health Care Sys., Inc.,
439
F.3d 1286 (11th Cir. 2006), and in Jones v. Gulf Coast Health Care
of Del., LLC,
854 F.3d 1261 (11th Cir. 2017).
Plaintiff says when she was fired on 19 March, Carr and Dr.
Akbar told her that her position was being eliminated because
there was insufficient work. On the Separation Notice form filed
with the State of Georgia Department of Labor, the Practice
marked a box indicating that the reason for Plaintiff’s separation
was “lack of work.”
During this lawsuit, however, the Practice asserted more
reasons for terminating Plaintiff’s employment, including Plain-
tiff’s absenteeism and rude behavior. Plaintiff calls the supplemen-
tation a “change.” Plaintiff says the Practice’s changing reasons
support an inference that the decision to fire Plaintiff was not mo-
tivated by the proffered reasons.
We have said that “an employer’s failure to articulate clearly
and consistently the reason for an employee’s discharge may serve
as evidence of pretext.” See Hurlbert,
439 F.3d at 1298 (in the
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20-14351 Opinion of the Court 13
context of establishing pretext under the McDonnell Douglas
framework). In both Hurlbert and in Jones, we concluded that in-
consistencies in the employer’s stated reasons for terminating the
plaintiffs’ employment -- when viewed together with other evi-
dence of pretext -- was sufficient to avoid summary judgment. See
id. at 1298-99 (concluding that inconsistencies in the employer’s as-
serted reasons for terminating plaintiff’s employment -- considered
together with (1) the temporal proximity between the plaintiff’s re-
quest for FMLA leave and his termination and (2) the employer’s
deviation from its standard procedures -- constituted sufficient evi-
dence of pretext to avoid summary judgment); Jones, 854 F.3d at
1275-76 (inconsistencies in the employer’s proffered reasons for ter-
minating plaintiff -- considered in conjunction with a supervisor’s
comment about the inconvenience of plaintiff’s FMLA leave and
the temporal proximity between plaintiff’s return from FMLA
leave and his termination -- created a genuine dispute of material
fact about whether the employer’s stated reasons were pretextual).
Unlike the plaintiffs in Hurlbert and in Jones, Plaintiff has
failed to produce evidence that -- when considered together with
the purported inconsistencies in the Practice’s stated reasons -- is
sufficient to support a reasonable inference of pretext. Plaintiff has
failed to show adequately “such weaknesses, implausibilities, in-
consistencies, incoherencies, or contradictions” in the Practice’s
justifications such that a reasonable factfinder could find them un-
worthy of credence. See Gogel, 967 F.3d at 1136.
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14 Opinion of the Court 20-14351
Viewing the record in the light most favorable to Plaintiff,
Plaintiff has demonstrated no “convincing mosaic of circumstantial
evidence” that would support a reasonable inference that the Prac-
tice’s decision to terminate her employment was motivated by un-
lawful pregnancy discrimination. We affirm the district court’s
grant of summary judgment in favor of the Practice.
AFFIRMED.
