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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12154
Non-Argument Calendar
________________________
D.C. Docket No. 2:17-cv-00903-MHH
MARGARET HENDERSON,
Plaintiff-Appellant,
versus
LABORATORY CORPORATION OF AMERICA HOLDINGS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 14, 2021)
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
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After working for Laboratory Corporation of America (“LabCorp”) for 42
years, Margaret Henderson was terminated on April 13, 2016, at the age of 65.
Henderson sued LabCorp for age discrimination under the Age Discrimination in
Employment Act (“ADEA”), claiming LabCorp fired her because of her age.
LabCorp denied the allegation and asserted that it terminated Henderson because
of her poor performance over multiple years in violation of its policies. Upon
LabCorp’s motion, the district court granted LabCorp summary judgment because
it found that Henderson failed to identify evidence from which reasonable jurors
could find that LabCorp terminated Henderson because of her age. For the reasons
explained below, we affirm.
I. Background
LabCorp operates clinical laboratories throughout the country. In 1973,
Henderson began working as a laboratory technician in LabCorp’s Birmingham
office. By 2011, Henderson oversaw four departments in LabCorp’s Birmingham
office. As part of a 2011 restructuring led by Rudy Menendez, Vice President of
Laboratory Organizations, Henderson’s responsibilities were reduced to overseeing
only two departments. The next year, Henderson’s responsibilities were reduced
again, leaving her with oversight of only the Birmingham microbiology
department.
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As head of the microbiology department, Henderson was responsible for
managing the department’s laboratory supervisors and their team leaders to ensure
that specimens were processed efficiently. Menendez, as leader of the
restructuring, focused particularly on performance metrics to assess the staffing
and productivity of LabCorp departments. In the three years leading to
Henderson’s termination, the Birmingham microbiology department, under
Henderson’s leadership, repeatedly fell short of these metrics.
In 2014, after the microbiology department struggled to meet required
metrics, Henderson ascribed its failures (particularly the high use of overtime
hours) to inadequate staffing. In November 2014, Henderson received a
performance improvement plan from her supervisor, Lynn Metcalf, that suggested
ways to improve her management of the department. 1 The plan specifically
focused on the department’s use of overtime and explained that management
expected “[m]icro[biology] resources [be] managed” to maintain certain low levels
of overtime use while keeping up productivity targets. The plan stated that
“[e]xcessive [overtime] is due to [mismanagement] of resources,” and warned
Henderson that she “must have personnel available when the work is available”
1
Metcalf was the Birmingham lab’s general manager and reported to Menendez in
Tampa until November 30, 2015.
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and “monitoring workflow and adjusting to workflow changes is one of the key
elements to controlling [overtime].”
Beginning in 2015, LabCorp’s Birmingham laboratories began receiving
twice daily automated reports called “AUDI reports” showing the number of
overdue specimens in each department. High AUDI ratings were troublesome
because they indicated delayed test results which could cause delayed diagnoses or
spoiled specimens. Menendez expected each department to generally keep its
AUDI rating below 200.
In June 2015, Metcalf gave Henderson a mostly positive performance
evaluation. Henderson scored 88 out of 100 which “[met] [e]xpectations.”
Metcalf wrote that Henderson was “excellent at anticipating the needs of her
department and planning ahead to meet those needs.” But later in 2015 things
worsened for Henderson. Leaders from the Tampa LabCorp microbiology
department were sent to the Birmingham microbiology department to coach the lab
in improving efficiency and quality control to keep low AUDI numbers. The
leader of the Tampa microbiology department, Ethel Pujols, visited Birmingham
several times to coach and counsel Henderson’s department. On October 5, 2015,
Pujols emailed Henderson that “[t]he AUDI is still long” and “should be less than
100.” Henderson disliked these visits and emailed Metcalf saying “Ethel Pujols
has been here at least 3 or 4 times in the past year and Dr. Harvey [was] here last
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August. I feel like I am constantly being harassed and I feel like my job is in
constant jeopardy.”
On October 22, 2015, days before Henderson turned 65, Metcalf gave
Henderson a verbal warning concerning quality control, efficiency, and accident
issues in the department. The written record of the warning said in part:
In October 2015 the Microbiology department reported out 28 lab
accidents. It is your responsibility to ensure that specimen problems
are being worked on a timely basis. . . . These 28 specimens will need
to be recollected which creates late reporting and inconveniences our
patients and in fact some specimens may not be able to be recollected
. . . . We have discussed this in the past; however the problems still
persists [sic]. Lack of compliance with LabCorp procedures or
violations of any other policy may result in further disciplinary action
up to and including termination of employment.
Just over a month after Metcalf issued Henderson the verbal warning, on
November 30, 2015, Pujols became Henderson’s supervisor. Joy Davidson, a
laboratory supervisor under Henderson, testified that Pujols was “disrespectful” to
Henderson, but she did not think it had anything to do with Henderson’s age.
Davidson testified that Pujols singled out Henderson and often yelled profanity
towards her. Henderson testified that Pujols referred to her as a “real southern
lady” and as Pujols’ “mentor.” Pujols also told Henderson that she “hope[d] to be
like [Henderson] when [she got] to be [her] age.” Henderson also testified that
Pujols referred to Menendez as “daddy,” and would say “daddy’s not happy with
you today.”
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In December of 2015, Pujols was concerned about satisfying Menendez’s
requirements for the Birmingham microbiology lab. After Henderson complained
about staffing deficiencies, Pujols responded in a December 1, 2015 email that
“[n]ow is not the time to argue that your style is better because [Birmingham] is
not meeting the basic metrics. Once we meet all the metrics we can go back to re-
evaluate.” Two days later, Menendez emailed Pujols that an October 2015 turn-
around-time report was “[n]ot a good report for Birmingham.” Pujols then told
Henderson to “come [up] with a solid mathematical plan” to improve numbers for
the next turn-around-time report. Three days later, on December 7, 2015, Pujols
emailed Henderson asking: “what is the plan for the AUDI?” Pujols instructed
“[d]o not wait until I ask you. You need to come up with a plan every day. It is
your job to control your metrics.”
On January 7, 2016, Pujols issued Henderson a written reprimand explaining
her responsibilities. The reprimand stated that Henderson’s department had
performed quality control “irregularly or not at all in some areas during 2015.”
The written reprimand stated that “[w]e have discussed this in the past; however
the problem persists,” and it warned that a lack of compliance with LabCorp
policies might result in Henderson’s termination. Supervisors in the microbiology
department also received warnings, and one of the supervisors, Davidson, stepped
down from her supervisor role and returned to her former role as a technician
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following the January 2016 warning. When discussing replacing Davidson, Pujols
emailed Henderson that “Margaret[,] we can do this, we just have different
management styles and I am trying to discover who are my warriors. I want active
innovative people that are creative under pressure.” Henderson testified that Pujols
said she wanted to fill the position with “someone that was a young Margaret.”
The next month, AUDI numbers in the microbiology department rose again
to over 300. Pujols emailed Henderson asking her to “clean up” that day’s AUDI
report. She also told Henderson to “come up with a plan that controls your AUDI
even if you have to bench yourself . . . . The expectations for us is to control the
AUDI no matter what.” Pujols told a human resources manager who asked about
why the numbers were so high that she “would like to tell [Henderson] that she
will lose her employment with LabCorp if the AUDI spikes again.” Instead, Pujols
emailed Henderson and requested an explanation for that day’s AUDI exceeding
300 after being under control for months and said, “we are reverting to incorrect
behavior.”
On March 7, 2016, Menendez emailed Pujols and others seeking an
explanation for the AUDI numbers in the Birmingham microbiology department
because they were “so bad” again. Pujols again sought an explanation from
Henderson, asking her to “[p]ut a plan into place now where you control the
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AUDI. Do not let it go to 300.” Henderson attributed the high numbers to staffing
issues, specifically the need for weekend personnel.
On April 11, 2016, the AUDI report was above 600. The high report was
due to a mistake made by a contract employee over the weekend while Henderson
was out of the office. The next day, Pujols recommended Henderson be terminated
from her position. The recommendation Pujols prepared recounted Henderson’s
previous disciplinary events, warnings, and conversations between Pujols and
Henderson about high AUDI reports. The recommendation said Henderson “has
been unable to meet the AUDI requirements for the department.” LabCorp’s
human resources director and Menendez approved the termination. Henderson was
officially terminated two days later.
After Henderson’s termination, Pujols, age 48, temporarily assumed the
responsibilities of Henderson’s position while continuing to manage the Tampa
microbiology department. AUDI numbers remained high under Pujols’s interim
management, and Menendez expressed concern about the high numbers. On May
9, 2016, Henderson’s position was posted for applicants, and in August 2016,
LabCorp hired Jennifer Clement, age 61, to replace Henderson permanently.
Metcalf testified that the AUDI numbers did not improve under Clement, and
Clement was reprimanded for poor AUDI reports. Clement left LabCorp
voluntarily in early 2018.
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When Henderson filed for unemployment, LabCorp told the Alabama
Department of Labor that Henderson was terminated for “[u]nsatisfactory work
performance.” It elaborated that the “final incident” leading to Henderson’s
termination was the 600+ spike on the April 11, 2016 AUDI report. LabCorp also
stated that Henderson “did not staff her department to meet the needs of the testing
schedule” and her employment was terminated involuntarily due to “[m]isconduct
related performance.”
On June 24, 2016, Henderson filed a formal charge of age and gender
discrimination with the EEOC. Thereafter, Henderson filed the instant lawsuit
alleging only age discrimination under the ADEA. The district court granted
LabCorp’s motion for summary judgment on Henderson’s employment
discrimination claim, and Henderson appealed.
II. Standard of Review
“We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1263 (11th Cir. 2010). Summary judgment is appropriate if “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
determining whether the movant has met this burden, we view the evidence in the
light most favorable to the non-movant. Alvarez,
610 F.3d at 1263–64.
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III. Discussion
On appeal, Henderson argues that the district court erred in granting
LabCorp’s motion for summary judgment for two reasons. First, she argues that
LabCorp’s articulated reason for her termination—poor performance over multiple
years in violation of company guidelines—was pretext for age discrimination.
Second, she argues that, regardless, she presented a convincing mosaic of
circumstantial evidence that creates a triable issue as to LabCorp’s discriminatory
intent.
Under the ADEA, it is unlawful for an employer to “discharge any
individual . . . because of such individual’s age.”
29 U.S.C. § 623(a)(1). A
plaintiff alleging discrimination under the ADEA must prove that age
discrimination was the “but-for” cause of the adverse employment action—
meaning that her age had a determinative influence on the outcome. Sims v. MVM,
Inc.,
704 F.3d 1327, 1332 (11th Cir. 2013). A plaintiff can establish age
discrimination using either direct or circumstantial evidence.
Id. When relying on
circumstantial evidence, the plaintiff can establish age discrimination in two ways.
Id. First, the plaintiff can operate under the burden-shifting framework established
in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Id. Second, the
plaintiff can present circumstantial evidence that “creates a triable issue concerning
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the employer’s discriminatory intent.”2 Id. at 1333 (quoting Smith v. Lockheed
Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011)).
A. McDonnell Douglas Framework
In the ADEA context, under the McDonnell Douglas burden shifting
framework, a plaintiff must first establish a prima facie case of discrimination.
Chapman v. AI Transport,
229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Among other methods, a plaintiff can establish a prima facie ADEA violation “by
showing that [s]he (1) was a member of the protected age group, (2) was subjected
to adverse employment action, (3) was qualified to do the job, and (4) was replaced
by . . . a younger individual.”
Id.
If the plaintiff establishes a prima facie case of discrimination, the burden of
production then shifts to the defendant employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.
Id. If the defendant
employer articulates such a reason, the plaintiff must come forward with evidence
sufficient to permit a reasonable factfinder to conclude that the defendant
employer’s articulated reason was not the real reason for the adverse employment
2
Litigants and courts often refer to this second pathway as the “convincing mosaic” test.
We explained in Sims that “[a] triable issue of fact exists ‘if the record, viewed in a light most
favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination by the decisionmaker.’” 704 F.3d at 1333
(quoting Smith,
644 F.3d at 1328).
We note that the “convincing mosaic” is not a legal test but is a metaphor for the
proposition that a discrimination plaintiff can prove her case by presenting evidence that creates
a genuine issue of material fact as to the employer’s discriminatory intent.
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action.
Id. An employee must meet an employer’s proffered reason “head on and
rebut it, and . . . cannot succeed by simply quarreling with the wisdom of that
reason.” Id. at 1030. When the plaintiff fails to produce evidence creating a
genuine issue of material fact as to whether the employer’s articulated reason is
pretextual, the employer is entitled to summary judgment. Id. at 1024–25.
The district court assumed that Henderson established a prima facie case of
age discrimination and found that LabCorp articulated a legitimate, non-
discriminatory reason for its employment decision—Henderson was terminated for
her poor performance over multiple years in violation of LabCorp’s guidelines.
The district court then determined that Henderson did not demonstrate that
Labcorp’s articulated reason for her termination was pretext for age discrimination.
We agree with the district court that Henderson did not demonstrate that a
reasonable jury could conclude that LabCorp’s reason for terminating Henderson
was pretext for age discrimination.
Henderson points to LabCorp’s treatment of her replacements as head of the
Birmingham microbiology department, Pujols and Clement, both of whom are
younger than Henderson, as evidence of pretext. She asserts that because LabCorp
did not fire Pujols or Clement, even though AUDI numbers remained high under
their leadership, a reasonable jury could infer that LabCorp’s reasons for firing her
were pretextual. We agree with the district court that this evidence is insufficient
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to demonstrate pretext because LabCorp’s treatment of Pujols and Clement is not
probative of Henderson’s age discrimination claim for two reasons. First, Pujols
and Clement each only served in the position for a short tenure and left the position
when AUDI numbers did not improve. Second, Henderson did not demonstrate
that either Pujols or Clement had the disciplinary track record that she possessed in
her final year-and-a-half as head of the microbiology department, which
encompassed other deficiencies in addition to a failure to meet AUDI guidelines.
Accordingly, Henderson did not meet her burden under the McDonnell Douglas
framework to rebut LabCorp’s proffered reason as pretext for age discrimination.
B. Convincing Mosaic
Notwithstanding a plaintiff’s failure to establish age discrimination under
McDonnell Douglas, she may survive summary judgment if she presents
circumstantial evidence that creates a triable issue about the employer’s
discriminatory intent. Sims, 704 F.3d at 1333 (citing Smith,
644 F.3d at 1328). “A
triable issue of fact exists if the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination by the decisionmaker.”
Id. (quotation
marks omitted). A plaintiff may make such a showing “by evidence that
demonstrates, among other things, (1) suspicious timing, ambiguous statements . . .
, and other bits and pieces from which an inference of discriminatory intent might
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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) (quotation marks omitted).
In arguing she demonstrated a triable issue on LabCorp’s discriminatory
intent, Henderson contends that: (1) the timing of her termination was suspicious
because she received a verbal warning the same month she turned 65 years old;
(2) Menendez and Pujols made “ageist statements” and treated her in a
disrespectful manner; (3) LabCorp gave “shifting reasons” for her termination; and
(4) LabCorp set her up to fail by setting unreasonable expectations.3 The district
court determined that the evidence Henderson relied on did not create a triable
issue as to LabCorp’s discriminatory intent. We agree.
Henderson’s first argument, that the timing of her October 2015 warning
coinciding with her 65th birthday supports a finding that LabCorp had a
discriminatory intent in firing her, is insufficient for several reasons. First, this
warning was issued by Metcalf, who Henderson does not allege had any
discriminatory motivation towards her. Second, Henderson received other
disciplinary actions before this verbal warning that did not coincide with her 65th
3
Henderson also asserts that LabCorp’s treatment of Pujols and Clement when they
replaced her is evidence of LabCorp’s discriminatory intent. As explained above, LabCorp’s
treatment of Pujols and Clement is not probative of LabCorp’s discriminatory intent because
they are not similarly situated to Henderson.
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birthday. For example, in November 2014, LabCorp placed Henderson on a
performance improvement plan for mismanaging department resources. Third, it is
undisputed that the verbal warning was issued after 28 accidents were reported in
Henderson’s department. The fact that Henderson turned 65 in October 2015,
amid ups and downs in LabCorp’s evaluation of her performance, is insufficient to
create a triable issue of fact as to LabCorp’s discriminatory intent.
Henderson’s second argument, that Menendez and Pujols treated her
disrespectfully because of her age, also falls short. Davidson testified that
Menendez treated Henderson differently than other managers and was disrespectful
to her. But Davidson also testified that she did not know why Menendez treated
Henderson disrespectfully, and Henderson put forth no evidence that Menendez’s
disrespectful treatment was because of her age. Henderson also relies on
Davidson’s testimony that Pujols singled her out for disrespectful treatment.
Specifically, Pujols used profanity frequently and yelled at Henderson. But once
again, Davidson testified that she did not think Pujols’s treatment of Henderson
had anything to do with her age.
Henderson also points to several statements Pujols made to support her
discrimination claim. Specifically, Pujols told Henderson in reference to hiring a
new employee that that she wanted employees who were “warriors” and “active
innovative people that are creative under pressure.” Henderson also testified that
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Pujols said she considered Henderson to be a “southern lady” and her “mentor.”
These descriptors are not age-specific statements, and they do not support
Henderson’s argument that she was fired because of her age.4
Henderson points to two arguably age-related statements Pujols made, but
these comments were isolated, not disparaging of age, and not connected to her
termination or any disciplinary action. In reference to filling an open position,
Pujols told Henderson she was looking for a “young Margaret.” She also told
Henderson “I just hope to be like you when I get to be your age.” These
statements, in context, do not create a triable issue that LabCorp fired Henderson
because of her age. Rojas v. Florida,
285 F.3d 1339, 1343 (11th Cir. 2002)
(holding that a discriminatory comment that was isolated and unrelated to the
termination decision was insufficient to establish a material fact as to the
employer’s discriminatory intent).
Henderson next argues that LabCorp’s discriminatory intent is shown by its
“shifting reasons” for her termination. Henderson argues that LabCorp’s recital of
her non-AUDI performance failures (i.e., inefficient staffing and failure to conduct
quality control) in this case constituted a shifting and inconsistent explanation for
4
Similarly, Henderson’s suggestion that we can infer that Menendez or Pujols
discriminated against her because of her age because Pujols nicknamed Menendez “Daddy” does
not hold weight. While this nickname may be strange, it does not support the inference that
Menendez or Pujols treated Henderson differently because of her age.
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her termination because Pujols only cited her high AUDI numbers at her
termination meeting. Henderson’s argument fails because the reasons LabCorp
mentions are not inconsistent with one another. Henderson’s termination memo
mentions Henderson’s AUDI failures and her October 2015 warning concerning
staffing and quality control problems. An employer’s shifting reasons for an
adverse employment action may allow a factfinder to reasonably infer that the
employer is dissembling to hide a discriminatory purpose, but this is not so when
an employer gives additional but consistent reasons for an employee’s termination.
Cleveland v. Home Shopping Network, Inc.,
369 F.3d 1189, 1194–95 (11th Cir.
2004); Tidwell v. Carter Prods.,
135 F.3d 1422, 1428 (11th Cir. 1998).
Henderson’s final argument is that LabCorp set unreasonable and arbitrary
AUDI goals as part of a plan to set her up to fail and terminate her. Henderson’s
argument falls short for several reasons. First, every department at the
Birmingham laboratory was expected to meet certain AUDI standards while
understaffed, not just Henderson’s department. Second, the AUDI metrics affected
multiple LabCorp employees and were not specifically targeted at Henderson.
Multiple managers, including Davidson, left LabCorp or took a lower position
because of the pressure from Menendez to improve efficiency based on the AUDI
numbers. Third, the AUDI numbers were not “arbitrary” because it is undisputed
that Henderson knew that all Birmingham departments were expected to keep the
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AUDI below 200. Fourth, Henderson’s suggestion that the final AUDI spike to
over 600 before her termination was not her fault is not persuasive. Even though
Henderson was on approved leave at the time of the incident, Henderson was
responsible for hiring and staffing the contract employee whose mistake caused the
AUDI to spike to over 600. While Henderson may not agree with LabCorp’s use
or enforcement of the AUDI metric, we do not consider the reasonableness of
LabCorp’s business judgment in this appeal. Chapman,
229 F.3d at 1030. Rather,
our only consideration is whether LabCorp terminated Henderson because of her
age.
Id.
Because Henderson did not present circumstantial evidence sufficient to
create a triable issue of fact as to LabCorp’s discriminatory intent, we affirm the
district court’s grant of summary judgment to LabCorp.
AFFIRMED.
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