Katherine E. Hankins v. AirTran Airways, Inc. , 237 F. App'x 513 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 14, 2007
No. 06-15406 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02515-CV-CAM-1
KATHERINE E. HANKINS,
Plaintiff-Appellant,
versus
AIRTRAN AIRWAYS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 14, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
After appellant Katherine Hankins (“Hankins”) was terminated from her
probationary term of employment with AirTran Airways, Inc. (“AirTran”), she
brought an action against AirTran pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., (“Title VII”). Hankins, who is white, alleged that
she had been discriminated against on the basis of her race. She asserted counts
against AirTran for race discrimination; hostile work environment; and improper
retaliation. AirTran moved for summary judgment on all of the counts asserted by
Hankins, which the district court granted. Hankins now appeals, contending that
the district court erred in granting summary judgment for AirTran on her
retaliation claim.1 Upon review of the record, we AFFIRM.
I. BACKGROUND
The evidence, which we view in a light most favorable to Hankins as the
party against whom summary judgment was entered, is as follows. Hankins was
employed as a flight attendant with AirTran from 16 May 2003 until 29 September
2003, the date on which she was discharged. Throughout the time that Hankins
was employed with AirTran, her status was that of a probationary employee.
During her employment, Hankins, who is a white female, was supervised by Maya
1
On appeal, Hankins does not challenge the district court’s grant of summary judgment
in favor of AirTran with respect to her race discrimination claim (Count I) or her hostile work
environment claim (Count II). Therefore, we address solely the grant of summary judgment on
the retaliation claim. See AT&T Broadband v. Tech Commc’ns Inc., 381 F.3d 1309, 1320 n.14
(11th Cir. 2004) (citation omitted) (“Issues not raised on appeal are considered abandoned.”)
2
Durham, an African-American female, who was the “in-flight supervisor” for all
probationary flight attendants. As such, Durham was responsible for overseeing a
panoply of performance issues related to probationary flight attendants, including
their personal appearance; their in-flight professional conduct; their punctuality;
their overall preparedness; and their familiarity with both FCC regulations and the
in-flight equipment.
Apparently, Durham was sometimes abrasive in her interactions with
probationary employees; Allison Head, who is white and is the base manager that
supervised Durham, stated that she had received some complaints that Durham
could be “very harsh” and “abrasive” when speaking to her subordinates. R3-56 at
14, 22. Durham herself agreed that she sometimes intimidated her trainees,
because her job was to convey “very tough” information to probationary
employees about the company’s expectations of them once they became flight
attendants. R3-55 at 34-35. Hankins has further alleged that Durham also had a
clear racial bias against whites, and has stated that it was well-known among the
flight attendants -- primarily through workplace gossip -- that Durham subjected
white trainees to different treatment than African-American trainees, and that she
subjugated the former to “constant harassment.” R2-34 at 61.
Three disputes involving Hankins and Durham are pertinent to this appeal.
3
The first, on 31 May 2003, involved Hankins’ travel bag, which was allegedly
overstuffed and too large to fit in an overhead compartment while in-flight.
Instead, Hankins strapped her suitcase into an empty seat on the plane, in violation
of both AirTran’s policies and FCC regulations. Shari Gunnin, the lead flight
attendant on the flight, reprimanded Hankins for this behavior, and later filled out a
report detailing the incident. Durham was not present for this incident. Hankins
claims that Gunnin was “rude” and “unpleasant” to her, simply because she “[did]
not like [her].” R1-1 at 3; R2-34 at 100-101. Hankins also claims that after the
flight was over, she advised Durham that Gunnin would likely write her up, due
solely to her personal dislike of her, and that Durham reassured Hankins that
“everything’s fine” and that she should not “worry about it.” R2-34 at 101. Later,
when Gunnin’s incident report was in fact filed, Durham called Hankins into her
office. Hankins explained to Durham that the incident had been mis-characterized
and asked Durham to remove the incident report from Hankins’ file, but Durham
refused, stating that the report was required to remain in her file for twelve months.
The second incident occurred on 18 June 2003, during a “check ride”2 on a
DC-9 airplane on which Durham was observing Hankins and two other
probationary flight attendants. Hankins was less familiar with the DC-9, and was
2
A “check ride” is a formal evaluation of a flight attendant’s performance during a real
flight. See R2-34 at 40.
4
unaware that the power on a D-9 airplane cuts off when it backs away from the
terminal. During Hankins’ presentation over the plane’s intercom, the power cut
off, and, unbeknownst to Hankins, her voice was temporarily inaudible to the
passengers. Durham later informed Hankins and the other flight attendants that she
was going to fail them on the check ride, for failing to re-start the safety
demonstration after the power had cut off. The other flight attendants protested
this treatment, arguing that Durham had told them while in-flight that they did not
need to re-start the safety presentation. In light of these protestations, Durham
stated that she chose to “give them the benefit of the doubt,” tore up the
performance form indicating a failing grade, and gave each attendant a passing
score instead. R3-55 at 42-43.
The final incident between Durham and Hankins came in July 2003, while
Durham was on board a flight and was observing Hankins in her mandatory pre-
flight inspection of emergency equipment. Durham verbally reprimanded Hankins
for not checking some of the pieces of emergency equipment, and later wrote up a
disciplinary notice -- which she submitted to Head -- detailing Hankins’ failure to
thoroughly check the equipment. In her report, Durham also recommended that
Hankins be sent back to AirTran’s flight attendant training program for further
training. This recommendation, however, was not heeded. Hankins contends that
5
Durham had “no reason” for writing her up for this incident, and maintains that
Durham simply did not like her “because [she was] white.” R2-34 at 68, 78.
When Hankins was called to Head’s office on 9 September 2003 to discuss
Durham’s report, Hankins contends that she told Head that Durham’s treatment of
her constituted race discrimination. Specifically, Hankins claims that she told
Head in that meeting that Durham did not like white employees, that Durham
constantly harassed her fellow white trainees, and that such discrimination had
been an ongoing problem under Durham’s supervision.
Following these incidents with Durham, on 14 September 2003, Hankins
had a run-in with Adam Kerstetter, a flight attendant, while they were waiting in
line for the employee bus. After Kerstetter cut in front of Hankins in line, Hankins
yelled at Kerstetter and told him, in front of the other employees, that she “would
kick his ass if he ever tried to cut in front of [her] again in line.” R2-34 at 124.
Although Hankins was joking when she made this statement, she concedes that
Kerstetter did not respond as if it were a joke, and that he appeared embarrassed by
the confrontation. In fact, Kerstetter filed a letter to his superiors complaining of
this incident, based on his belief that Hankins’ “manner and comment [were]
threatening in nature” and were “completely inappropriate and unwarranted” by the
circumstances. R1-32, Exh. 1 at 2. After Durham received Kerstetter’s letter
6
detailing the incident, she passed it along to Head. Head later met with Kerstetter,
and he directly recounted the details of the incident to her.
After the incident, Head reviewed Hankins’ file and her overall performance
as a probationary employee. Included in Hankins’ file were the two incident
reports detailing the improper bag checking incident and Hankins’ failure to check
the in-flight safety equipment. Head had also been concerned that Hankins’
personality was “unnecessarily argumentative or combative”; she later stated that
the Kerstetter incident had confirmed this initial impression. R1-32, Exh. 5 at 3.
Head indicated that new AirTran employees were expected to show a productive
and positive attitude, and to demonstrate good judgment and discretion in their
interaction with others, and that Hankins’ conduct toward Kerstetter had fallen
short of that standard. Thus, Head contacted Susan Manfredi, Vice-President of
In-Flight Services, and Amy Morris, Director of Employee Relations and
Diversity, recommending Hankins’ termination. Manfredi authorized Head to
discharge Hankins.
On 29 September 2003, Head met with Hankins and notified her that she
was being discharged because she had failed to successfully complete her
probationary period as a flight attendant, and had violated Rules 1 and 14 of the
Airtran Airways Crew Member Handbook, which prohibit, respectively,
7
disrespectful, abusive, or unprofessional behavior, and using threatening or abusive
language. Head gave Hankins a letter reiterating the basis for this termination
decision.
A year later, Hankins filed a charge with the Equal Opportunity
Employment Commission (“EEOC”), alleging that AirTran had discriminated
against her on the basis of her race and had retaliated against her for complaining
internally of such discrimination, in violation of Title VII. After a review, the
EEOC notified Hankins that it was unable to find a violation of Title VII, based on
the fact that (1) there was no connection between the alleged retaliation and her
discharge; and (2) AirTran had provided a legitimate non-discriminatory reason for
her termination, one that was not shown to be pretextual.
After the EEOC issued a right to sue letter, Hankins brought the present
Title VII action against AirTran in the Northern District of Georgia. She
contended that she had been subject to unfair treatment and harassment from
Durham on the basis of her race, and that when she had complained about
Durham’s racial discrimination to her superiors at AirTran -- namely Head -- she
had been terminated. Hankins’ complaint alleged counts for discrimination on the
basis of race (Count I); hostile work environment (Count II); and retaliation for
engaging in a protected activity under Title VII (Count III).
8
Hankins’ case was referred to a magistrate judge, and, following discovery,
AirTran moved for summary judgment on all counts of the complaint. In a report
and recommendation (“R&R”), the magistrate judge recommended that summary
judgment be granted in favor of AirTran all three counts of Hankins’ complaint.3
The district court adopted the reasoning of the R&R in full and entered
summary judgment for AirTran. Hankins now appeals, arguing that the district
court erred in granting summary judgment for AirTran on her retaliation claim.
II. STANDARD OF REVIEW
“We review a district court’s grant of summary judgment under a de novo
standard of review.” Gibson v. Resolution Trust Corp., 51 F.3d 1016, 1020 (11th
Cir. 1995) (citation omitted). In doing so, we apply the same legal standards as
those that controlled the district court. Real Estate Fin. v. Resolution Trust Corp.,
950 F.2d 1540, 1543 (11th Cir. 1992) (per curiam) (citation omitted). According
to those standards, as set forth in Federal Rule of Civil Procedure 56(c), summary
3
As to the discrimination claim, the magistrate judge concluded that Hankins had failed
to establish a prima facie case. As to the hostile work environment claim, the magistrate judge
determined that the alleged harassment was not sufficiently severe and frequent to taint Hankins’
workplace environment, nor had Hankins’ shown that Durham’s alleged mistreatment of her was
done on the basis of her race. Finally, as to the retaliation claim, the magistrate judge
determined that this claim failed because, first, the intervening incident with Kerstetter had
severed the causal connection between Hankins’ protected activity (complaining that Durham
was racist) and her eventual termination from AirTran, and, moreover, even if one were to
assume a causal connection, AirTran had provided a legitimate, non-discriminatory reason for
Hankins’ firing, one that had not been shown by Hankins to be pretextual. Accordingly the R&R
recommended that summary judgment be granted for AirTran on all of Hankins’ counts.
9
judgment is appropriate when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. “A genuine issue of
material fact ‘exists only if sufficient evidence is presented favoring the
nonmoving party for a jury to return a verdict for that party.’” Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (citations
omitted). “In making this assessment, we review all facts and inferences
reasonably drawn from the facts in the light most favorable to the nonmoving
party.” Id. (citation omitted).
III. DISCUSSION
Hankins’ argument on appeal is two-fold. First, she contends that the
district court erred in agreeing with the magistrate judge’s determination that she
failed to establish a prima facie case of retaliation. Second, she contends that the
district court erred in accepting the magistrate judge’s conclusion that Hankins
failed to demonstrate that AirTran’s stated reason for her firing her was pretextual
and thus unworthy of credence.4 We address each in turn.
4
On appeal, Hankins also makes a third argument -- namely that AirTran can be held
liable on a “mixed-motive” theory of liability under Title VII, which applies in cases where both
legitimate and illegitimate reasons motivated a termination decision. See Desert Palace Inc. v.
Costa, 539 U.S. 90, 93, 123 S. Ct. 2148, 2150 (2003); 42 U.S.C. § 2000e-2(a)(1). This argument
was not raised in the district court, and neither the magistrate judge nor the district court were
provided an opportunity to address this theory of liability. “This Court has repeatedly held that
an issue not raised in the district court and raised for the first time in an appeal will not be
considered by this court.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (citation and internal quotations omitted). Because none of the exceptions to
10
A. Whether Hankins Established a Prima Facie Case of Retaliation
Hankins first argues that the district court erred in concluding that she had
failed to establish a prima facie case of retaliation under Title VII. She contends
that she established the three elements of a retaliation claim, and that the court’s
determination that her prima facie retaliation case failed on the basis of causation
was in error.
“Retaliation is a separate offense under Title VII.” Meeks v. Computer
Assocs., 15 F.3d 1013, 1021 (11th Cir. 1994) (citing 42 U.S.C. § 2000e-3(a)).
Title VII’s anti-retaliation provision prohibits an employer from retaliating against
an employee “because [she] has opposed any practice made an unlawful
employment practice” by Title VII, including discrimination on the basis of race.
42 U.S.C. § 2000e-3(a). The goal of this provision is “prevent[] an employer from
interfering (through retaliation) with an employee’s efforts to secure or advance
enforcement of the Act’s basic guarantees,” including freedom from race
discrimination. Burlington N. & Santa Fe R.R. Co. v. White, ___ U.S. ___, 126 S.
Ct. 2405, 2412 (2006). “An employee need not prove the underlying claim of
discrimination for the retaliation claim to succeed.” Sullivan v. Nat’l R.R.
Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999) (citations omitted).
that well-established rule is applicable in Hankins’ case, we decline to consider her “mixed-
motive” theory for the first time on appeal. See id. at 1332-1335.
11
To establish a prima facie case for retaliation, the plaintiff must show that:
(1) she engaged in a statutorily protected expression; (2) she suffered an adverse
employment action; and (3) there is some causal link between the protected
expression and the adverse action. Sullivan, 170 F.3d at 1059. After these
elements are shown by the plaintiff, the burden shifts to the employer to proffer a
legitimate, non-discriminatory reason for the adverse employment action. Meeks,
15 F.3d at 1021. In the event the employer offers a non-discriminatory reason for
the adverse action in question, the plaintiff must then “demonstrate that [she] will
be able to establish at trial that the employer’s proffered non-discriminatory
reasons are a pretextual ruse designed to mask retaliation.” Farley, 197 F.3d at
1336 (citation and internal quotation omitted).
Applying that framework to the facts of this case, we find that Hankins
presented sufficient evidence to support the first two elements of her prima facie
retaliation claim. As to the first element, Hankins engaged in a protected activity
by stating to her superior, Allison Head, Hankins’ belief that Durham was
discriminating against her on the basis of race. Although Head disputes this
version of events -- contending that Hankins never told her any such thing --
Hankins has testified unequivocally that she informed Head that Durham
discriminated against whites. We also agree that the second element of her
12
prima facie case is satisfied, and that Hankins suffered an “adverse employment
action” for purposes of Title VII, in that she was terminated from her position with
AirTran. See, e.g., Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir.
2000) (identifying discharge as an adverse employment decision for Title VII
purposes).
We agree, however, with both the magistrate judge and the district court that
Hankins failed to satisfy the third element, that is, establishing the causal link
between the protected activity (Hankins’ complaint of Durham’s racial bias) and
the eventual decision to terminate her employment. Because we find that Hankins
failed to establish the causation prong of her retaliation claim, we agree that
summary judgment was appropriate on this count. See Johnson v. Bd. of Regents,
263 F.3d 1234, 1243 (11th Cir. 2001) (stating that “the plain language of Rule
56(c) mandates the entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial”)
(citation and quotations omitted).
We have stated that a plaintiff alleging a claim for retaliation may establish
the causation prong of the prima facie case by “prov[ing] that the protected activity
and the negative employment action are not completely unrelated.” Meeks, 15
13
F.3d at 1021 (citation and quotation omitted); Farley, 197 F.3d at 1337. Causation
may be shown, among other ways, by demonstrating that there is a “close temporal
proximity” between the employer’s awareness of the protected activity and the
adverse employment action. Farley, 197 F.3d at 1337. On appeal, Hankins hinges
her argument concerning causation on this “close temporal proximity” notion,
arguing that because she reported to Head that Durham was racially biased on 9
September 2003, and she was terminated on 29 September 2003 -- a 20-day gap --
the “close temporal proximity” between the two events exists, and, thus, the causal
chain is established. She notes that in other cases, we have been willing to infer
causation where the temporal proximity was much longer than 20 days. See, e.g.,
id. (finding causation where the defendant-employer learned of the employee’s
filing an EEOC complaint and then fired the employee seven weeks later).
As the magistrate judge noted, however, close temporal proximity between
two events, standing alone, is not a panacea, absent any other evidence that the
employment decision was causally related to the protected activity. In Whatley v.
Metropolitan Atlanta Rapid Transit Authority, for example, our predecessor circuit
concluded that even though the plaintiff engaged in protected expression that
occurred in close temporal proximity to the adverse employment action, there was
no causal connection because the evidence demonstrated that the dismissal was
14
actually caused by “a culmination of problems growing out of appellant’s manner
of handling his job, his lack of cooperation within his office, his mismanagement
of his staff, his refusal to comply with the terms of his job description, and his
refusal to follow instructions from his supervisor.” 632 F.2d 1325, 1329 (5th Cir.
1980). Similarly, in Fleming v. Boeing Company, we held that even though the
plaintiff filed complaints of sexual harassment shortly before the employer rejected
her application for employment, the plaintiff failed to establish causation, because
the record made clear that the employee had not been hired because she had failed
to meet the employer’s qualifications -- namely, she had failed to pass a typing test,
which was a pre-requisite to employment. 120 F.3d 242, 248 (11th Cir. 1997).
Here, it is undisputed (indeed, Hankins herself acknowledges), that on 14
September -- five days after Hankins allegedly reported Durham’s suspected racial
bias to Head -- Hankins yelled at a co-worker for cutting her off in line and stated
that she would “kick his ass if he ever tried to cut in front of [her] again in line.”
R2-34 at 124. This intervening act of misconduct, which was plainly in violation
of Rules 1 and 14 of Airtran Airways Crew Member Handbook, severed the causal
connection (if any) between Hankins’ initial complaint of discrimination and
AirTran’s decision to terminate her employment.
Thus we agree with both the magistrate judge and the district court that
15
causation cannot be inferred in Hankins’ case simply from the 20-day temporal
proximity between her claimed protected expression and her termination. As in
Whatley and Fleming, Hankins’ failure to meet the performance standards set by
the employer broke the causal connection (if any) between the protected activity
and her eventual termination. Despite a close proximity in time between these
events, the evidence establishes that Hankins’ flagrant act of misconduct broke the
causal chain. Accordingly, the district court properly concluded that Hankins’
prima facie case of retaliation failed on causation grounds, and properly granted
summary judgment for AirTran on that basis.5
5
Hankins alternatively attempts to establish causation by relying on a “cat’s paw” theory
of liability. Under this theory, if the plaintiff shows that a colleague with a racial animus lacked
the power to terminate an employee, but that the colleague made a biased recommendation to her
superior that the employee be discharged and that recommendation was followed, it may be
inferred that it was the colleague’s racial animus was the cause in fact of the termination. The
superior who carries out the adverse employment action acts merely as the “cat’s paw” for the
person with the discriminatory animus. See, e.g., Stimpson v. City of Tuscaloosa, 186 F.3d
1328, 1331-32 (11th Cir. 1999) (per curiam). To establish causation under such a theory,
however, the plaintiff must establish “that the discriminatory animus behind the
recommendation, and not the underlying employee misconduct identified in the [colleague’s]
recommendation, was an actual cause of the other party’s decision to terminate the employee.”
Id. at 1331. That is, in such cases “causation may be established if the plaintiff shows that the
decisonmaker followed the biased recommendation without independently investigating the
complaint against the employee.” Id. at 1332.
Here, the evidence made clear that Head made the decision after an independent
assessment of Hankins’ conduct –which included a review of the complaint by the victim,
Kerstetter, a meeting with Kerstetter to discuss the incident, and a review of Hankins’ overall
performance as a probationary employee. Durham stated that she played no role in
recommending Hankins’ termination. Even assuming that Durham prepared a “report” and that
the report was biased, because Hankins has not established “that the decisonmaker [that is,
Head] followed [Durham’s report] without independently investigating the complaint against
[Hankins],” she cannot establish a causal connection pursuant to a “cat’s paw” theory of
retaliation. Id. at 1332.
16
B. Whether Hankins Demonstrated That AirTran’s Reason was Pretextual
Moreover, even if we were to assume that Hankins successfully established
the causation prong of her retaliation claim so as to demonstrate a prima facie case
of retaliation, we find that AirTran provided a valid, legitimate, and non-
discriminatory reason for Hankins termination -- namely, her clear violation of the
rules of conduct by her unusually confrontational exchange with a co-worker,
coupled with the earlier incidents detailed in her file. Having successfully
“rebut[ed] the presumption of retaliation by producing [a] legitimate reason[] for
the adverse employment action,” Sullivan, 170 F.3d at 1059 (citation omitted), the
burden shifts to Hankins to “demonstrate that [she] will be able to establish at trial
that the employer’s proffered non-discriminatory reasons are a pretextual ruse
designed to mask retaliation.” Farley, 197 F.3d at 1336. We conclude, as the
district court did, that Hankins has failed to meet this threshold.
After legitimate, non-discriminatory reasons for an employment decision
have been given, our case law makes clear that a plaintiff alleging retaliation must
show “that the reasons proffered [by the employer] . . . were false and that the real
reason was retaliation.” Sullivan, 106 F.3d at 1061. This may be done “either
directly by persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer’s proffered explanation is
17
unworthy of credence.” Carter v. City of Miami, 870 F.2d 578, 584 (11th Cir.
1989) (citations and quotations omitted).
Here, Hankins has failed to demonstrate either that AirTran’s decision to
terminate her employment was more likely than not motivated by a racist motive,
or that its stated explanations for that decision are somehow “unworthy of
credence.” See id. With respect to the former, the person with the alleged racial
bias, Durham, stated that she had no involvement in the decision to terminate
Hankins; Head, who is a white female, indicated that she made the decision to
terminate Hankins after she learned of Hankins’ verbal threat against Kerstetter
and reviewed this incident in light of Hankins’ overall job performance as reflected
in her personnel file. Head reiterated her view that “when a probationary employee
[such as Hankins] fails to comply with our rules and policies, and fails to
demonstrate good judgment and discretion in her interactions with others,
[AirTran] is not inclined to continue employment.” See R1-32, Exh. 5 at 3. Put
simply, Hankins has failed to show that it was more likely that Head’s decision to
terminate her probationary term of employment was actually motivated by a
discriminatory motive. See Carter, 870 F.2d at 584.
In addition, Hankins has failed to demonstrate that AirTran’s proffered
reasons for her termination were pretextual or somehow unworthy of credence.
18
Hankins’ argument that the incident with Kerstetter was merely a joke is
unavailing, because we have stated that the pretext inquiry is concerned with the
employer’s perception of the employee’s performance, not the employee’s own
beliefs. See, e.g., Cooper v. Southern Co., 390 F.3d 695, 740 (11th Cir. 2004)
(“The relevant issue here is not whether [the employee] actually falsified the entry,
but rather whether [the employer] honestly believed [the employee] falsified the
entry.”). Here, we are satisfied that AirTran honestly believed its employee,
Kerstetter, when he stated that he found Hankins’ conduct to be threatening and
offensive, irrespective of whether Hankins subjectively intended her behavior to be
a joke.
Nor are we persuaded that AirTran’s proffered explanations were pretextual
based on Hankins’ contention that other AirTran employees who engaged in
similar acts of misconduct were not terminated. Hankins argues that an African-
American colleague of hers, Calvin Nared, engaged in a “fight” with a co-worker
and was not fired, whereas she was fired for using harsh language to her colleague,
Kerstetter. Nared, however, is not a valid comparator to Hankins’ case. We have
made clear that, when a plaintiff seeks to point out a workplace comparator who
was treated less severely than the plaintiff, the “quantity and the quality of the
comparator’s misconduct [must be] nearly identical to prevent courts from second-
19
guessing employers’ reasonable decisions and confusing apples with oranges.”
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (emphasis added). Here,
Hankins’ discharge came not only after the altercation incident with Kerstetter, but
also after two other incidents of misconduct over a short period of four months.
These additional incidents -- her strapping a suitcase into a passenger seat instead
of the overhead bin, and her failure to properly check safety equipment -- were
both detailed in her file and were considered by Head in making the ultimate
decision to terminate her. In light of that evidence, the alleged misconduct of
Nared (a single fight with a co-worker, the facts of which are not known) is
distinguishable from her misconduct, both in terms of quality and quantity. See,
e.g., id. at 1369 (finding that plaintiff has failed to show a similarly situated
employee where each of the putative comparators “was involved in a single
incident of misconduct, whereas [the plaintiff] committed at least four policy
violations”).
In summary, AirTran has proffered legitimate, non-discriminatory reasons
for Hankins’ termination, by pointing out that she committed errors of professional
judgment during her probationary period of employment and violated the rules of
employee conduct by verbally abusing her co-worker, Kerstetter. Because we find
that the proffered reasons for the termination are those that “might motivate a
20
reasonable employer,” the burden is on Hankins to meet those reasons head on and
rebut them. See Chapman v. AI Transport, 299 F.3d 1012, 1030 (11th Cir. 2000)
(en banc). This Hankins has failed to do. Hankins has failed to point out “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
[AirTran]’s proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997) (citation and quotation omitted). Thus, summary
judgment was appropriate on her retaliation claim. See Cooper, 390 F.3d at 725(“If the plaintiff does not proffer sufficient evidence to create a genuine issue of
material fact regarding whether each of the defendant-employer’s articulated
reasons is pretextual, the employer is entitled to summary judgment on the
plaintiff’s claims.”) (citation and quotations omitted). We discern no error in the
judgment of the district court.
IV. CONCLUSION
Hankins appealed the district court’s decision to grant summary judgment in
favor of AirTran on her claim of improper retaliation in violation of Title VII.
Upon careful review of the record and the parties’ briefs, we agree with the district
court that Hankins failed to establish the causation element of a prima facie case of
retaliation, and, in addition, that she failed to show that AirTran’s legitimate, non-
21
discriminatory reasons for her termination were in any way pretextual or unworthy
of credence. Consequently, we conclude that the district court acted properly in
granting summary judgment for AirTran on Hankins’ retaliation claim. The
judgment of the district court is AFFIRMED.
22