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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11446
Non-Argument Calendar
____________________
STEPHANIE DAVIS,
Plaintiff-Appellant,
versus
INFINITY INSURANCE CO,
INFINITY PROPERTY AND CASUALTY CORP,
ROBIN ADAMS,
in his capacity as Plan Administrator and Trustee of
Infinitys Profit Sharing Bonus Plan,
Defendants-Appellees.
____________________
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2 Opinion of the Court 21-11446
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:15-cv-01111-JHE
____________________
Before WILSON, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Stephanie Davis appeals from the district court’s orders
granting her former employer, Infinity Insurance Company and In-
surance Property and Casualty Corporation’s (collectively, Infin-
ity) motions to dismiss and for summary judgment in her civil ac-
tion alleging disparate treatment based on national origin discrim-
ination, disparate impact based on national origin discrimination,
and disparate treatment based on race discrimination, in violation
of
42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. § 2000e et seq. Davis argues that she stated a plau-
sible claim of disparate treatment based on national origin. Davis
further argues that she established a genuine issue of material fact
as to whether Infinity discriminated based on national origin
against non-Hispanic employees, thus creating a disparate impact
on its non-Hispanic employees. Finally, Davis argues that she es-
tablished a genuine issue of material fact as to whether Infinity dis-
criminated based on race, thus creating disparate treatment of
Black employees. We affirm.
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21-11446 Opinion of the Court 3
I.
The undisputed facts in this case are as follows. Infinity is a
property and casualty insurance company with locations across the
country. Infinity’s customer service department consists of two
units: the Call Center and Policy Services. The Call Center handles
phone calls from customers and employs Customer Service Con-
sultants (CSCs). The Policy Services handles reviewing and pro-
cessing policy information and employs Policy Service Specialists
(PSSs). Infinity hired Davis in 2002 as a Cash Clerk, but she was
promoted to PSS in 2006.
Beginning in 2014, Infinity underwent a restructuring to
consolidate its operations to locations with large Hispanic popula-
tions. This aligned with Infinity’s new corporate strategy of being
“a low cost provider of choice for urban and Latino markets.” As
part of this restructuring, Infinity transitioned positions from the
company’s Birmingham location to other offices, such as Tucson,
Miami, and McAllen, Texas. Infinity decided to hire more bilingual
(Spanish and English speaking) employees in those locations while
terminating employees in its Birmingham location. Infinity sought
to achieve 100% bilingual CSC capability at its new locations. In
addition, Infinity decided to staff a team of PSSs at those locations,
which would be more efficient then having to rely on the PSSs in
Birmingham. Infinity did not require that its PSSs be bilingual, but
there is evidence in the record that it preferred bilingual PSSs. A
majority of the new PSSs hired in McAllen and Tucson were bilin-
gual.
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4 Opinion of the Court 21-11446
In June 2014, Infinity began a two-phase reduction in force
(RIF) for its Birmingham employees. Phase I of the RIF was com-
pleted on June 27, 2014, resulting in the elimination of four PSSs.
Infinity primarily focused on employees with disciplinary history
in Phase I. Phase II of the RIF was completed on October 31, 2014
and involved a more complicated metric in terminating PSSs. Em-
ployees were ranked based on three components: Year to Date
(YTD) Raw Score, Years of Service (YOS) Score, and Impact Factor.
YTD Raw Score took into account an employee’s performance
from January 2014 through July 2014, measuring productivity and
quality of work for that period. YOS Score consisted of a PSS’s total
years of service divided by 10. Impact Factor measured input from
the four PSS supervisors, who assigned each PSS a score between
0 and 4. The Impact Factor apparently went to an employee’s abil-
ity to adapt to changes in the work environment.
On September 17, 2014, Infinity informed Davis via a writ-
ten memo that she had been selected to be laid off on October 31,
2014. In relevant part, the memo stated:
As previously announced[,] we will be transitioning
some positions from the call center and policy ser-
vices in Birmingham to McAllen, Tucson and/or Mi-
ami to increase the number of employees with bilin-
gual Spanish/English skills to better service our cus-
tomers as the company continues to grow.
The decisions to lay-off employees were extremely
difficult due to the high quality of work and
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21-11446 Opinion of the Court 5
dedication of the employees in Infinity’s workforce.
We regret to inform you that you have been selected
as one of the people who will be laid off on October
31, 2014. Criteria for lay-off was based on a combina-
tion of factors, including performance, seniority, dis-
ciplines and relevant skill sets. We sincerely thank
you for your service to Infinity and hope to make this
transition as easy as possible.
The memo went on to explain Davis’s severance package and en-
couraged Davis to apply for other positions within the company.
In total, 15 PSSs were terminated during Phase II of the RIF. Da-
vis’s cumulative score was near the bottom of the PSSs in the Bir-
mingham location, ranking 29th out of 37. Of the PSSs that were
retained in the Birmingham office, none of them spoke Spanish.
Based on the preceding, Davis alleged that when Infinity ter-
minated her, it engaged in disparate impact discrimination based
on national origin (Count I), disparate treatment discrimination
based on national origin (Count II), and disparate treatment dis-
crimination based on race in violation of Title VII and
42 U.S.C. §
1983 (Count III). The district court granted Infinity’s motion to
dismiss Count II because Infinity retained non-Hispanic employ-
ees. Thus, Davis’s complaint was insufficient to show that Infinity
intentionally treated non-Hispanics differently than Hispanics.
After discovery, Infinity moved for summary judgment on
Count I and Count III. The district court found that Davis col-
lapsed the overarching goal of reorganization to increase bilingual
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6 Opinion of the Court 21-11446
staff into a requirement that PSSs be bilingual. Since the record
refuted the point that Infinity had a policy requiring PSSs to be bi-
lingual, the district court granted summary judgment in favor of
Infinity on Count I. As to Count III, the district court granted sum-
mary judgment in favor of Infinity because Davis failed to show
that Infinity’s reasons for terminating her were pretextual. Davis
timely appealed.
II.
Our analysis proceeds in three parts. First, we will address
Davis’s disparate impact based on national origin claim. Second,
we turn to Davis’s disparate treatment based on race claim. Lastly,
we address Davis’s claim of disparate treatment based on national
origin.
Davis argues that the district court erred by granting sum-
mary judgment on her disparate impact claim based on national
origin because it incorrectly found that Spanish was not used as a
factor in terminating and replacing Davis. Davis claims that the
termination memo specifically stated that she was being termi-
nated “to increase the number of employees with bilingual Span-
ish/English skills.” Further, she argues that there is evidence show-
ing that Infinity preferred Spanish speaking PSSs. Since the ability
to speak Spanish favors Hispanic over non-Hispanic employees, the
argument goes, Infinity’s reorganization had a disparate impact
based on national origin.
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21-11446 Opinion of the Court 7
“We review de novo a district court’s grant of summary
judgment, viewing all the evidence, and drawing all reasonable in-
ferences, in favor of the non-moving party.” Vessels v. Atlanta In-
dep. Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005) (per curiam). Sum-
mary judgment is appropriate when the record shows that there is
no genuine issue as to any material fact and the movant is entitled
to a judgment as a matter of law.
Id.
To establish a prima facie case of disparate impact discrimi-
nation, the complaining party must (1) identify a specific and fa-
cially-neutral employment practice that caused a disparate impact
based on race, color, religion, sex, or national origin and (2) demon-
strate causation by offering statistical evidence sufficient to show
that the challenged practice has resulted in prohibited discrimina-
tion. E.E.O.C. v. Joe’s Stone Crab, Inc.,
220 F.3d 1263, 1274–75
(11th Cir. 2000). Once the plaintiff establishes a prima facie case,
the burden shifts to the defendant to establish that the challenged
employment practice serves a legitimate, nondiscriminatory busi-
ness objective.
Id. at 1275. If the defendant meets their burden,
the plaintiff may still prevail by proving that an alternative, nondis-
criminatory practice would have served the defendant’s stated ob-
jective equally well.
Id.
The parties dispute what the facially-neutral employment
practice that caused a disparate impact is here. Starting with the
operative complaint, Davis alleges:
In June 2014, Infinity announced that it was imple-
menting a termination and hiring plan based on a new
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8 Opinion of the Court 21-11446
policy that conditioned hiring and continued employ-
ment on being fluent in Spanish. Based on such pol-
icy, Infinity began to terminate employees not fluent
in Spanish and replace them with new hires who were
fluent in Spanish.
This allegation that employment was conditioned on the
ability to speak Spanish is consistent with the language Davis uses
in her opposition to Infinity’s motion to dismiss her third amended
complaint. There, she argues that “[t]he plaintiff has consistently
alleged that . . . the defendants terminated the plaintiff and other
employees pursuant to a policy which required new Policy Service
Specialists to be bilingual” (emphasis added). This contrasts with
her opposition to Infinity’s motion for summary judgment, where
she identified the “specific employment practice” as Infinity’s “bi-
lingual transition plan” that preferred new employees who spoke
Spanish. A policy conditioning employment on bilingualism is a
different employment practice from a “transition plan” that prefers
bilingual employees. Because “[a] plaintiff may not amend her
complaint through argument in a brief opposing summary judg-
ment,” Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1315
(11th Cir. 2004) (per curiam), we reject Davis’s attempt to rechar-
acterize her alleged employment practice. Thus, we analyze Da-
vis’s disparate impact based on national origin claim through the
lens that she alleges Infinity conditioned her employment based on
her ability, or lack thereof, to speak Spanish.
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21-11446 Opinion of the Court 9
Davis cannot establish a prima face case under this theory
because her employment was not conditioned on being bilingual.
This is clearly supported by the fact that none of the PSSs in Bir-
mingham who were retained after the second phase of the RIF
spoke Spanish. Further, the written memorandum she received
does not support her claim. While the memorandum stated that
the reason for the transitioning of employees to other offices was
to increase the number of bilingual employees, she herself was not
terminated because she could not speak Spanish. The memoran-
dum explained that the criteria for her termination was “based on
a combination of factors, including performance, seniority, disci-
plines and relevant skill sets.” Lastly, the record establishes that
there was no policy that newly hired PSSs in other locations speak
Spanish. Although the vice president of the company admitted to
preferring job candidates who spoke Spanish, this is different from
a policy that conditioned termination and hiring based on the abil-
ity to speak Spanish.
In sum, Davis fails on the first prong which requires a plain-
tiff to identify a specific employment practice that caused a dispar-
ate impact based on national origin. Joe’s Stone Crab, 220 F.3d at
1274. Assuming that the ability to speak Spanish favors Hispanic
employees over non-Hispanic ones, the record rebuts Davis’s claim
that Infinity conditioned employment based on the ability to speak
Spanish. Accordingly, we affirm the district court’s grant of sum-
mary judgment in favor of Infinity on Davis’s discrimination claim
of disparate impact based on national origin.
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10 Opinion of the Court 21-11446
III.
Next, we turn to Davis’s disparate treatment claim based on
race. Davis argues that Infinity discriminated against her based on
her race, Black, by terminating her employment while retaining
several similarly-situated White employees. A plaintiff asserting a
disparate treatment claim under Title VII must show that the de-
fendant acted with discriminatory intent through direct or circum-
stantial evidence. Joe’s Stone Crab, 220 F.3d at 1286. “Direct evi-
dence is evidence that establishes the existence of discriminatory
intent behind the employment decision without any inference or
presumption.” Id. A plaintiff may use circumstantial evidence to
prove intentional discrimination through the McDonnell Douglas1
framework by showing that she was: (1) a member of a protected
class, (2) subjected to an adverse employment action, (3) her em-
ployer treated similarly situated employees more favorably, and
(4) she was qualified to do the job. Id.
If the plaintiff meets the pleading requirements, the burden
shifts to the defendant to identify a legitimate, non-discriminatory
reason for the adverse employment action. Id. If the defendant
proffers such a legitimate purpose, the burden shifts back to the
plaintiff to ultimately prove that the defendant's stated reason was
a pretext for unlawful discrimination. Id.
1 McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
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21-11446 Opinion of the Court 11
The undisputed facts in the record show that Davis estab-
lished a prima facie case of disparate treatment based on race be-
cause she was a member of a protected class based on her race, was
terminated during the 2014 RIF, similarly situated employees were
treated more favorably because some Birmingham PSSs retained
their jobs, and she was qualified to do her job because she met or
exceeded her annual employee evaluations and had been working
as a PSS since 2006.
At the second step, the burden shifts to Infinity to offer a le-
gitimate, non-discriminatory reason for the adverse employment
action. Infinity satisfies this burden because Davis ranked 29th out
of 37th in the three-factor criteria that Infinity used to rank each
PSS based on their YOS, YTD raw score, and Impact Factor. None
of the three factors were discriminatory. The YOS was simply the
number of years an employee worked at the company divided by
ten. The YTD raw score measured a worker’s productivity. Thus,
the more productive and longer-tenured employees were more
likely to be retained. The Impact Factor is somewhat more subjec-
tive and relates to the employee’s ability to adapt to change. Be-
cause these factors are non-discriminatory, we find that Infinity of-
fered a legitimate non-discriminatory reason for its decision to ter-
minate Davis.
Davis argues that the reason is pretextual because she was
more qualified than some of the employees who were not let go
during the second phase of the RIF and the real reason for her ter-
mination was her race. We reject this argument. It’s hard to
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12 Opinion of the Court 21-11446
envision a more objective standard for terminating employees, par-
ticularly for the YTD and YOS scores. Davis contends that she was
more qualified than similarly-situated White employees who were
not terminated, but this is not a sufficient basis to show pretext. As
we have noted before, “[a] plaintiff is not allowed to recast an em-
ployer’s proffered nondiscriminatory reasons or substitute [her]
business judgment for that of the employer. Chapman v. AI
Transport,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). While
Davis may disagree with the reasons for her termination, that is not
sufficient to show that those reasons were pretext for racial dis-
crimination. Accordingly, we affirm the district court’s grant of
summary judgment in favor of Infinity on Davis’s disparate treat-
ment based on race claim.
IV.
Lastly, we turn to Davis’s appeal of the district court’s dis-
missal of her disparate treatment based on national origin claim.
According to Davis, the district court erred in concluding that she
did not state a plausible claim.
We review de novo the district court’s grant of a motion to
dismiss under 12(b)(6) for failure to state a claim, accepting the al-
legations in the complaint as true and construing them in the light
most favorable to the plaintiff. Hill v. White,
321 F.3d 1334, 1335
(11th Cir. 2003) (per curiam). Although a complaint need not set
forth detailed factual allegations, the plaintiff must allege sufficient
facts to render the claim “plausible on its face.” Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 570 (2007). Stating a plausible claim for
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21-11446 Opinion of the Court 13
relief requires pleading factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Le-
gal conclusions must be supported by factual allegations, and
pleadings that merely contain conclusions do not demonstrate suf-
ficient grounds for relief.
Id. at 678–79.
To establish a prima facie case of disparate treatment based
on a protected class, a plaintiff must prove, among other things,
that “her employer treated similarly situated employees outside
her classification more favorably.” Knight v. Baptist Hosp. of Mi-
ami, Inc.,
330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (altera-
tions adopted and emphasis added). For her disparate treatment
based on national origin claim, Davis alleges that her protected
class is “non-Hispanic employees.” Therefore, to establish a plau-
sible claim, Davis must allege that Infinity treated employees out-
side her protected class, Hispanic employees, more favorably than
her. Davis fails to do this because none of the employees who were
retained in the Birmingham office following the RIF were His-
panic. Accordingly, Davis failed to state a plausible disparate treat-
ment based on national origin claim.
AFFIRMED.
