USCA11 Case: 21-12672 Date Filed: 10/07/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12672
Non-Argument Calendar
____________________
LAKEISHA E. MCNEAL,
Plaintiff-Appellant,
versus
INTERNATIONAL PAPER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cv-00602-KD-N
____________________
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2 Opinion of the Court 21-12672
Before JORDAN, NEWSOM, and LAGOA, Circuit Judges
PER CURIAM:
Lakeisha McNeal appeals the district court’s order granting
summary judgment in favor of International Paper on her claims
of race and sex discrimination and retaliation claims under Title
VII, 42 U.S.C. § 2000e-2(a)(1), and Section 1981,
42 U.S.C. § 1981.
First, McNeal argues that the district court erred in finding that she
failed to identify a similarly situated comparator for the purpose of
making a prima facie case of race or sex discrimination. Second,
McNeal argues that the district court erred in finding that she failed
to identify protected activity or a causal connection between that
activity and her firing for the purpose of making a prima facie case
of retaliation. Additionally, McNeal argues that the district court’s
grant of summary judgment for International Paper violated her
Seventh Amendment right to a jury trial. After careful review, we
affirm the district court’s entry of summary judgment in favor of
International Paper.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 14, 2014, International Paper hired McNeal, a Black
female, to work in the shipping department of International Pa-
per’s plant in Bay Minette, Alabama. Alfred Wallace, a white male,
was the shipping department manager, and Neal White was the
manufacturing manager for the Bay Minette plant. McNeal re-
ported to Wallace, and Wallace reported to White. At times,
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21-12672 Opinion of the Court 3
Barbara Stevens-McGinnis, a Black female and supervisor in the
converting department, would also direct McNeal’s work.
Upon her hiring, McNeal received a copy of, was made
aware of, and read International Paper’s policy against discrimina-
tion, harassment, or retaliation. The United Steelworkers Union
(the “union”), of which McNeal was a member during her employ-
ment with International Paper, had a labor agreement with Inter-
national Paper. The policy contained a progressive discipline sys-
tem that depended on how many incidents of discipline the em-
ployee received within a year. The system’s typical progression
consisted of the following steps: (1) verbal warning; (2) written
warning; (3) suspended three days; and then (4) termination of em-
ployment. After a year, incidents of discipline issued to an em-
ployee would be removed from the employee’s record.
On March 29, 2016, McNeal was issued a written warning
after she ran a “spot truck” out of fuel. On October 27, 2017,
McNeal was given a verbal warning for poor job performance. Be-
cause one year passed after each of these incidents without further
discipline, these warnings were removed from McNeal’s record.
Then, beginning on December 20, 2018, International Paper
took four disciplinary actions against McNeal within a year. First,
on December 20, 2018, McNeal received a verbal warning for fail-
ing to follow instructions regarding production issues. Second, on
January 10, 2019, McNeal received a written warning after she fell
asleep operating a forklift and collided with a safety barrier. Third,
on March 1, 2019, McNeal was suspended for three days after she
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4 Opinion of the Court 21-12672
took an unauthorized break without following department proce-
dure. And fourth, on July 26, 2019, McNeal was terminated after
she failed to follow shipping instructions when loading a trailer.
After her third disciplinary incident, McNeal filed a griev-
ance through her union alleging that she was disciplined “for the
wrong reason” and that White and Stevens-McGinnis harassed her
on the radio and in person. She made no reference to race or sex
in that grievance. International Paper investigated McNeal’s griev-
ance, conducting interviews with McNeal, Stevens-McGinnis,
White, and other employees. After the investigation, International
Paper denied McNeal’s grievance. The union did not appeal that
decision.
On August 6, 2019, McNeal filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC).
The EEOC dismissed McNeal’s charge on August 14, 2019, stating
that it was “unable to conclude that the information obtained es-
tablishes violations of the statutes.”
On August 29, 2019, McNeal filed suit against International
Paper alleging claims for race and sex discrimination and retalia-
tion. On October 29, 2020, McNeal filed an amended complaint.
Following discovery, on May 21, 2021, International Paper moved
for summary judgment. McNeal opposed International Paper’s
motion.
The district court granted summary judgment in favor of In-
ternational Paper on all of McNeal’s claims. On her race and sex
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21-12672 Opinion of the Court 5
discrimination claim, the district court found that: (1) McNeal
failed to produce sufficient evidence of similarly situated compara-
tors such that she had not carried her burden in demonstrating a
prima facie case; (2) even if McNeal had established a prima facie
case of discrimination, International Paper satisfied its burden to
show a legitimate, non-discriminatory reason for termination; and
(3) McNeal failed to show evidence that International Paper’s rea-
son was pretextual or that a convincing mosaic of circumstantial
evidence showed discrimination. On her retaliation claim, the dis-
trict court found that: (1) McNeal failed to show that she was en-
gaged in statutorily protected activity; and (2) McNeal failed to
show causation between the alleged protected activity and her ter-
mination. This appeal followed.
II. STANDARD OR REVIEW
“We review a district court’s grant of summary judgment de
novo.” Wadley Crushed Stone Co., LLC v. Positive Step, Inc.,
34
F.4th 1251, 1256 (11th Cir. 2022). “We grant summary judgment
‘when viewing the evidence in the light most favorable to the non-
moving party, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.’”
Id. (quot-
ing Sierra Club, Inc. v. Leavitt,
488 F.3d 904, 911 (11th Cir. 2007)).
III. ANALYSIS
We begin by addressing McNeal’s argument that the district
court erred by granting summary judgment for International Paper
on her race and sex discrimination claims. We then address
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6 Opinion of the Court 21-12672
McNeal’s argument that the district court erred by granting sum-
mary judgment for International Paper on her retaliation claim.1
A. McNeal’s Race and Sex Discrimination Claims
Title VII precludes employers from discriminating against
an employee “because of” her race or sex. 42 U.S.C. § 2000e-2(a).
Title
42 U.S.C. § 1981 prohibits intentional race discrimination in
the making and enforcement of public and private contracts, in-
cluding employment contracts. See Johnson v. Ry. Express
Agency,
421 U.S. 454, 459–60 (1975). Title VII racial disparate treat-
ment claims and § 1981 race discrimination claims are evaluated
using the same analytical framework. Rice-Lamar v. City of Ft.
Lauderdale,
232 F.3d 836, 843 n.11 (11th Cir. 2000).
Title VII and § 1981 discrimination claims that rely on cir-
cumstantial evidence are evaluated under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Chapter 7 Tr. v. Gate Gourmet, Inc.,
683 F.3d
1249, 1255 (11th Cir. 2012). Under McDonnell Douglas, the plain-
tiff bears the initial burden to establish a prima facie case of discrim-
ination.
411 U.S. at 802. Here, McNeal argues that the district
court failed in finding that she did not make a prima facie case. To
1 McNeal also argues that the district court’s grant of summary judgment in-
fringed on her Seventh Amendment right to a jury trial. This argument is
foreclosed by this Court’s precedent. “The Supreme Court made clear long
ago that ‘summary judgment does not violate the Seventh Amendment.” Jef-
ferson v. Sewon Am., Inc.,
891 F.3d 911, 920 (11th Cir. 2018) (quoting Parklane
Hosiery Co. v. Shore,
439 U.S. 322, 336 (1979)).
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21-12672 Opinion of the Court 7
establish a prima facie case of discrimination, the plaintiff must
show that: (1) she is a member of a protected class; (2) she was qual-
ified for her position; (3) that she suffered an adverse employment
action; and (4) she was treated less favorably than a similarly situ-
ated employee outside of her class. Lewis v. City of Union City,
918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). The parties here
dispute only the last prong, i.e., whether McNeal has demonstrated
similarly situated “comparators.” See
id. at 1217.
If a plaintiff establishes a prima facie case of discrimination,
the burden then shifts to the employer to rebut it by producing ev-
idence that the employer had a legitimate, nondiscriminatory rea-
son for its action.
Id. at 1221. The employee then bears the burden
to show that the employer’s reason is pretextual.
Id.
i. The district court did not err in finding that McNeal failed
to show a similarly situated comparator.
To be similarly situated, a comparator must be “similarly
situated in all material respects,” meaning that the plaintiff and the
comparator are “sufficiently similar, in an objective sense, [such]
that they ‘cannot reasonably be distinguished.’”
Id. at 1218, 1228
(quoting Young v. Parcel Serv., Inc.,
575 U.S. 206, 231 (2015)). This
standard requires a case-by-case analysis, and minor differences in
job functions between a plaintiff and a comparator are not disposi-
tive as to whether they are similarly situated.
Id. at 1227. How-
ever, a similarly situated comparator will ordinarily “have engaged
in the same basic conduct” as the plaintiff, “will have been subject
to the same employment policy,” will have ordinarily had the same
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8 Opinion of the Court 21-12672
supervisor, and “will share the plaintiff’s employment or discipli-
nary history.”
Id.
McNeal proffered Tony Perkins, a white male who worked
with McNeal, as a similarly situated comparator. According to
McNeal, Perkins was treated better than her because he received
six disciplinary actions before he was fired, while McNeal received
only four before her termination. But her argument is contradicted
by the record. Because of the progressive discipline policy in which
incidents are removed from the count after twelve months, Per-
kins, just like McNeal, received four disciplinary actions within the
year before he was terminated. Also, the comparison further fails
as McNeal herself received six disciplinary actions, two of which
were removed from her record under the policy. Therefore,
McNeal has not met her burden in establishing that Perkins is sim-
ilarly situated in all material respects.
McNeal also proffered Terry Phillips, a white male, and Ray-
mond Seals, a Black male, as similarly situated comparators who
slept on the forklift and damaged the forklift without conse-
quences. Apart from a brief description in her deposition, the rec-
ord is absent of any other information relating to Phillips and Seals.
McNeal also fails to provide information related to the timing of
these incidents and the individuals’ disciplinary history. Without
such information, the individuals offered by McNeal cannot serve
as comparators. And without such comparators, McNeal cannot
make a prima facie case of race or sex discrimination.
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21-12672 Opinion of the Court 9
International Paper also argues that even without compara-
tors, McNeal could not show a “convincing mosaic” of race or sex
discrimination. The district court noted that McNeal made no ar-
gument on this point, but the evidence was not sufficient to give
rise to an inference of discrimination under Smith v. Lockheed-
Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011) (summary judg-
ment is improper if “the circumstantial evidence raises a reasonable
inference that the employer discriminated against the plaintiff”).
McNeal mentions Smith on appeal but does not expressly make an
argument on this point. Even if we were to conclude that McNeal
had not waived this argument by failing to raise it below, see Ac-
cess Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir.
2004), or by failing to adequately brief it on appeal, see Timson v.
Sampson,
518 F.3d 870, 874 (11th Cir. 2008), we conclude that the
district court did not err in finding that McNeal did not present suf-
ficient evidence to portray a convincing mosaic of circumstantial
evidence. The record evidence shows that both men and women,
and Black and white employees were disciplined for similar con-
duct as McNeal. And McNeal testified that she never heard re-
marks about her race or sex from supervisors.
ii. The district court did not err in finding that IP offered a le-
gitimate, nondiscriminatory reason for the termination that
McNeal did not show to be pretextual.
Even if McNeal could establish a prima facie case, the bur-
den then shifts to the employer to rebut it by producing evidence
that the employer had a legitimate, nondiscriminatory reason for
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10 Opinion of the Court 21-12672
its action. Lewis, 918 F.3d at 1221. The employee then bears the
burden to show that the employer’s reason is pretextual. Id. To
show pretext, a plaintiff “must demonstrate ‘such weaknesses, im-
plausibilities, inconsistencies, incoherences, or contradictions in
the employer’s proffered legitimate reasons for its action that a rea-
sonable factfinder could find them unworthy of credence.’” Alva-
rez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1265 (11th Cir. 2010)
(quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th
Cir. 1997)). If the employer’s reason for termination is one that
“might motivate a reasonable employer, an employee must meet
that reason head on and rebut it, and the employee cannot succeed
by simply quarreling with the wisdom of that reason.” Chapman
v. AI Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000). The plaintiff
then must show both that the proffered reason was false and that
discrimination was the true reason for the adverse action. St.
Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993).
Employers “are free to fire their employees for ‘a good rea-
son, a bad reason, a reason based on erroneous facts, or for no rea-
son at all, as long as its action is not for a discriminatory reason.’”
Flowers v. Troup Cnty., Ga., Sch. Dist.,
803 F.3d 1327, 1338 (11th
Cir. 2015) (quoting Nix v. WLCY Radio/Rahall Commc’ns,
738
F.2d 1181, 1187 (11th Cir. 1984)). Therefore, even if a plaintiff’s
evidence supports an interference that the proffered reason is “pre-
text of something,” summary judgment is appropriate if the plain-
tiff does not produce evidence that the reason was pretext of dis-
crimination.
Id. at 1337–38.
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21-12672 Opinion of the Court 11
In this case, International Paper offered a legitimate, nondis-
criminatory reason for terminating McNeal—she received four dis-
ciplinary actions within a year and was fired pursuant to the com-
pany’s policy. While McNeal does not dispute this, she tries to
show that this reason was pretextual by pointing to the allegedly
favorable treatment given to Perkins. As discussed above, the rec-
ord evidence does not show that International Paper treated Per-
kins differently. McNeal therefore failed to provide sufficient evi-
dence from which a factfinder could reasonably determine that In-
ternational Paper’s reason for termination was a pretext.
Accordingly, we affirm the district court’s grant of summary
judgment on McNeal’s race and sex discrimination claim.
B. McNeal’s Retaliation Claim
Title VII prohibits an employer from retaliating against an
employee for opposing “any practice” made unlawful by Title VII
(the “Opposition Clause”), or making a charge, testifying, assisting,
or participating in a Title VII proceeding or investigation (the “Par-
ticipation Clause”). 42 U.S.C. § 2000e-3(a). Section 1981 also pro-
vides an avenue for retaliation claims. See CBOCS W., Inc. v.
Humphries,
553 U.S. 442, 446 (2008). McNeal makes a retaliation
claim under the Opposition Clause.
When analyzing claims of retaliation based on circumstan-
tial evidence, we employ the McDonnell Douglas analytical frame-
work. See Bryant v. Jones,
575 F.3d 1281, 1307 (11th Cir. 2009).
Under this framework, the plaintiff must first establish a prima facie
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12 Opinion of the Court 21-12672
case of retaliation.
Id. If a plaintiff establishes a prima facie case of
retaliation, and the defendant articulates a legitimate, nondiscrimi-
natory reason for the adverse action, the plaintiff then has an op-
portunity to show that the defendant’s proffered reason was a pre-
text for retaliation.
Id. at 1308.
To establish a prima facie case of retaliation, a plaintiff may
show that: (1) she engaged in a statutorily protected activity; (2) she
suffered an adverse action; and (3) she established a causal link be-
tween the protected activity and the adverse action.
Id. at 1307–
08. The parties dispute only the first and third requirements.
i. The district court did not err in finding that McNeal failed
to show that she was engaged in a statutorily protected ac-
tivity.
“To establish statutorily protected conduct under Title VII’s
opposition clause, [a plaintiff] must ‘show[] that he had a good
faith, reasonable belief that the employer was engaged in unlawful
employment practices.’” Howard v. Walgreen Co.,
605 F.3d 1239,
1244 (11th Cir. 2010) (second alteration in original) (quoting Little
v. United Tech., Carrier Transicold Div.,
103 F.3d 956, 960 (11th
Cir. 1997)). The plaintiff must show both that she subjectively be-
lieved that the employer engaged in unlawful discrimination, and
that her belief was objectively reasonable in light of the facts and
record present.
Id. The plaintiff need not prove that the conduct
she opposed was actually unlawful, but the reasonableness of her
belief that the employer “engaged in an unlawful employment
practice must be measured against existing substantive law.”
Id.
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21-12672 Opinion of the Court 13
(quoting Clover v. Total Sys. Serv., Inc.,
176 F.3d 1346, 1351 (11th
Cir. 1999)). “Unfair treatment, absent discrimination based on
race, sex, or national origin, is not an unlawful employment prac-
tice under Title VII.” Coutu v. Martin Cnty. Bd. Of Com’rs,
47
F.3d 1068, 1074 (11th Cir. 1995).
McNeal argues that the grievance she filed after her third
disciplinary action was statutorily protected activity. Her griev-
ance, however, makes no reference to race or sex discrimination.
As such, we conclude that her grievance is not aimed at an unlaw-
ful employment practice under Title VII and is not statutorily pro-
tected. See
id. at 1074.
ii. The district court did not err in finding that McNeal failed
to show a causal link between her allegedly protected activ-
ity and her termination.
The causal link element is construed broadly so that a plain-
tiff merely must prove that the protected activity and negative em-
ployment action are not completely unrelated. Pennington v. City
of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001). “Close tem-
poral proximity between protected conduct and an adverse em-
ployment action is generally ‘sufficient circumstantial evidence to
create a genuine issue of material fact of a causal connection.’”
Hurlbert v. St. Mary's Health Care Sys., Inc.,
439 F.3d 1286, 1298
(11th Cir. 2006) (quoting Brungart v. BellSouth Telecomms., Inc.,
231 F.3d 791, 799 (11th Cir. 2000)). However, this proximity must
be “very close.” Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361,
1364 (11th Cir. 2007) (quoting Clark Cnty Sch. Dist. V. Breeden,
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14 Opinion of the Court 21-12672
532 U.S. 268, 273 (2001)). “A three to four month disparity between
the statutorily protected expression and the adverse employment
action is not enough.”
Id.
McNeal’s allegedly protected activity, her grievance, oc-
curred five months before her termination, a gap too distant to sup-
port a causal relationship. But even if the protected activity is
timed at the union’s closing of the complaint, there is unrebutted
record evidence demonstrating that the decisionmaker did not
know of the closing. And, as with her race and discrimination
claim, McNeal does not offer evidence to show that International
Paper’s legitimate, nondiscriminatory reason for termination was
pretext.
Accordingly, we affirm the district court’s grant of summary
judgment on McNeal’s retaliation claim.
IV. CONCLUSION
For all these reasons, we affirm the district court’s order
granting summary judgment for International Paper on McNeal’s
claims.
AFFIRMED.
