[ PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________ No. 21

- 11016

____________________ MARY E. HARRIS, Plaintiff

- Appellant,

versus THE PUBLIC HEALTH TRUST OF MIAMI

- DADE COUNTY, d.b.a. Jackson Health System, d.b.a. Jackson Memorial Hospital, d.b.a. Jackson Hospital Ambulatory Clinic, Defendant

- Appellee.

____________________ Appeal from the United States District Court for the Sout hern District of Florida D.C. Docket No. 1:19

- cv
- 25298

- KMM

____________________ USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 1 of 152 Opinion of the Court 21

- 11016
Before J ILL P RYOR , N EWSOM , and G RANT , Circuit Judges

. P ER C URIAM : Mary E

. Harris

— a b lack nurse who was disciplined and ultimately fired by her employer, Public Health Trust of Miami

- Dade County

— appeals the district court’s entry of summary judgment on her Title VII and state

- law claims alleging ( 1 ) employment discrimination, ( 2 ) hostile work enviro nment, and ( 3 ) retaliation

. Harris contends that the district court erred in rejecting all three claims. W e disagree and affirm.
I First, a few basic facts: Harris wor ked for Public Health Trust for ten years. For the first eight, she was at Jackson North Medical Center. After her position there was eliminated, she requested and received a transfer to Jackson Reeves Senior Health Center , but following a series of disciplinary actions, Public Health Trust fired her

. Harris claims that she experienced discrimination at both locations and that her termination was based on her race.
II Having set the stage, w e will consider Harris’s employment

discrimination, hostile

- work

- environment, and retaliation claims in turn, canvassing additional fac ts as necessary. 1

1 We review the district court’s grant of summary judgment de novo, “considering all of the evidence and the inferences it may yield in the light most favorable to ” Harris as “ the nonmoving party .” Ellis v. England , 432 F.3d 1321, 1325

– 2 6 (11th Cir. 2005)

. USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 2 of 1521

- 11016 Opinion of the Court 3

A Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992 both make it unlawful for a private employer to “discriminate against any individual with respect to [her] compensation, terms, conditions, or privilege s of employment, because of” her race or national origin. 42 U.S.C. § 2000e

- 2(a) (1 ) ; see Fla. Stat. § 760.10(1)(a). 2 In assessing an employment

- discrimination claim at summary judgment, w e use one or more of three legal frameworks

. First, and most obviously, d irect evidence of discrimination necessarily create s a sufficiently genuine dispute to prevent summary judgment. Cases in which there is no direct evidence may proceed under either the burden

- shifting analysis outlined in McDonnell Douglas Cor p. v. Green , 411 U.S. 792 (1973) , or the “convincing mosaic” standard described in Smith v. Lockheed

- Martin Corp. , 644 F.3d 1321, 1328 (11th Cir. 2011)

. The district court here found no direct evidence of race discrimination , and so applied the McDonnell Douglas framework. Before us, Harris insists that there is direct evidence

— namely, an incredibly nasty comment made by her supervisor at Jackson Reeves , Gianella Carreno, that “blacks are lazy, and don’t like to work.” I ndeed, o n appeal, Harris puts all her eggs in the direct

- evidence

2 Claims under Title VII and the FCRA are analyzed under the same framework. See Alvarez v. Royal Atl. Devs., Inc. , 610 F.3d 1253, 1271 (11th Cir. 2010) (discrimination and retaliation); Wilbur v. Corr ectional Servs. Corp. , 393 F.3d 1192, 1195 n.1 (11th Ci r. 2004) (hostile work environment). USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 3 of 154 Opinion of the Court 21

- 11016 basket; she doesn’t pursue either of the available method s of making out a circumstantial

- evidence case. Under our precedent, she has thereby forfeit ed any circumstantial

- evidence claims that she might have had

. See Bryant v. Jones , 575 F.3d 1281, 1308 (11th Cir. 2009) ( holding that an argument under McDonnell Douglas was forfeit ed by failing to raise it in the district court ); Bailey v. Metro Ambulance Servs., Inc. , 992 F.3d 1265, 1274 (11th Cir. 2021) ( holding that

a convincing

- mosaic argument was forfeit ed on appeal ). Therefore, u nless Carreno’s statement constitutes direct evidence, Harris’s employment

- discrimination claim will fail. We have held that o nly the “ most blatant remarks, ” whose intent cou ld be nothing other than to discriminate, constitute direct evidence of discrimination. Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004)

. “ I f the alleged statement suggests, but does not prove, a discriminatory motive, then it is circu mstantial evidence”

— not direct. Id. W hile statements made by a decisionmaker

— i.e. , the one who ultimately fire d , demote d , or punishe d the plaintiff

— may constitute direct evidence, see, e.g. , EEOC v. Alton Packaging Corp. , 901 F.2d 920, 923 (11th Cir. 1990), “remarks by non

- decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination , ” Standard v. A.B.E.L. Servs., Inc. , 161 F.3d 1318, 1330 (11th Cir. 1998).
Harris conce des that Carreno was n’t the formal decisionmaker but nonetheless insists that she was the driving force behind her discipline and eventual termination

. Harris is thus making

a so
- called “cat’s paw” argument , although “ p uppet master” might USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 4 of 1521

- 11016 Opinion of the Court 5

more aptly describe it

. We have never applied th e cat’s

- paw theory
to a direct

- evidence claim, 3 a nd we needn’t decide today whether it so applies , because even if it did , it wouldn’t be satisfied here. A cat’s

- paw argument requires evidence that the ultimat e (and manipulated ) decisionmaker

— the puppet

— “followed the biased recommendation ” of another

— the puppeteer

— “ without independently investigating the complaint against the employee.” Stimpson v. City of Tuscaloosa , 186 F.3d 1328, 1332 (1 1th Cir. 1999). But beyond “ mere conclusions and unsupported factual allegations , ” which don’t suffice to defeat summary judgment, Ellis v. England , 432 F.3d 1321, 1327 (11th Cir. 2005) , Harris provides no evidence of a failure to investigate. To the contrary , Harris conced es that the individual who fired her , Caridad Nieves, conducted her own investigation and relied on , if anything, the recommendation of someone other than Carreno

. And the supervisors who meted out Harris’s pre

- termination reprimands likewise independentl y investigated the underlying facts

. See Doc. 32

- 2 ¶¶ 7

– 12 (Freeman) ; Doc. 32

- 15 ¶¶ 3, 4

– 6 (Nieves). Harris responds that th o se supervisors failed to investigate whether Carreno was biased, but they didn’t have to

— Harris mistakes the object of the requir ed

3 Neither decision that Harris cite s held that a cat’s

- paw theory can be the basis for a direct

- evidence claim

. See Llampallas v. Mini

- Cir cuits , Lab, Inc. , 163 F.3d 1236, 1249 (11th Cir. 1998); Wright v. Southland Corp

. , 187 F.3d 1287, 1304 n.20 (11th Cir. 1999). The portion of Wright on which Harris relies also comes from
an opinion joined only by a single judge

. See i d. at 1306 (Cox, J., concurring) (“ I do not join Judge Tjoflat ’ s opinion .”); id. (Hull, J., concurri ng) (“ I concur only in the result reached by Judge Tjoflat ’ s opinion .”). USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 5 of 156 Opinion of the Court 21

- 11016 investigation . As we have explain ed , what’s required to rebut a cat’s

- paw allegation is an investigation of “the complaint against the employee”

— not of the bias of the recommender. Stimpson , 186 F.3d at 1332.
We therefore affirm the district court ’ s grant of summary judgment on Harris’s employment

- discrimination claim

. B To prevail on her hostile

- work

- environment claim , Harris must establish that she suffered unwelcome harassment, that it was based on a protected characteristic, and that it was sufficiently “ severe or pervasive ” to alter the terms and conditions of her employment and create an abusive working environment. Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 127 5 (11th Cir. 2002 )

. The “severe or pervasive” requirement entails both an objective component

— namely, that a reasonable person would find the environment hostile or abusive

— and a subjective component. Id. at 1276

. In evaluating the objective severity of the harassmen t,
we consider (1) the frequency of the conduct , (2) its severity , (3) whether it was “ physically threatening or humiliating, or a mere offensive utterance , ” and (4) whether it unreasonably interfere d with the employee’s job performance. Id. Title VII , as we have emphasized, is not a federal “ civility code. ” Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 809 (11th Cir. 2010) ( en banc ) (quoting Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998))

. Harris alleges nine events or conditions that, she says , collectively rendered her workplace environment actionably hostile. USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 6 of 1521

- 11016 Opinion of the Court 7 In particular, she asserts that over a three

- year period, her supervisors (1) made the one highly offensive comment ( i.e. , Carreno’s slur that “blacks are lazy, and don’t like to work”) , (2) restricted heraccess to a supply closet, (3) micromanaged and excessively monitored her work, (4) solicited peers to report on her violations, (5) made her work alongside colleagues with histories of abuse, (6) once poked her on the s houlder, (7) wrongfully disciplined her, (8) made her perform more clerical duties than her peers , and (9) disbelieved or otherwise ignored her complaints of race discrimination. The district court refused to consider parts of No. 3 and all of No. 5 on the ground that they were time

- barred. It otherwise found that the conditions that Harris alleged weren’t sufficiently severe or pervasive to constitute a hostile work environment. Before us, t he parties dispute which of the nine ite ms we should consider. Harris argues that the district court incorrectly excluded evidence from her time at Jackson North as time

- barred

. Public Health Trust counters that several of the other events that Harris alleges are irrelevant because they weren’ t caused by her

race. Separately , the parties dispute whether the workplace conduct met the severe
- or
- pervasive threshold

. We’ll address those issues in turn.
1 As an initial matter, we conclude that t he district court properly refused to consider the Jackson North evidence , albeit for the wrong reason. Title VII and the FCRA require employees to file administrative complaints within a specified number of days USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 7 of 158 Opinion of the Court 21

- 11016 from the challenged employment action (s)

. See 42 U.S.C. § 2000e

5(e) ; Fla. Stat. § 760.11(1). In general, events that occur outside the prescribed period aren’t actionable. T here are two respects , though, in which such events might be relevant

. 4 First, for any type of discrimination claim, an employee can cite “prior a cts as background evidence in support of a timely claim.” Nat iona l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 1 13 (2002) . Second, a single, continuing hostile work environment can include events that predate the applicable time period

. Id. at 115

– 21. That’s because “[h] ostile environment claims are different in kind ” in that they are “composed of a series of separate act s that collectively constitute one ‘unlawful employment practice

. ’” Id. at 115, 117 (quoting 42 U.S.C. § 2000e

- 5(e)(1)). Importantly, though, events that occurred outside the prescribed period aren’t part of the same timely hostile

work

- environment claim if they aren’t related to those that occurred within the period

. Id. at 118. The district court correctly held that the events that Harris described at Jackson North

— her previous supervisors’ micromanaging and her being made to work with abusive colleagues

— were not relevant “ background evidence. ” B y b ackground evidence , we
mean “prior practices” that are “relevant to show[ing] independently actionable conduct occurring within the statutory period.” Fisher v. P rocter & Gamble Mfg. Co. , 613 F.2d 527, 540 (5 th Cir.

4 The citations th at follow interpret Title VII. F lorida ’s courts have adopted the same approach to the FCRA. See, e .g. , Maggio v. Dep ’ t of Lab. & Emp. Sec. , 910 So. 2d 876, 879

– 80 (Fla. 2d Dist. Ct. App. 2005)

. USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 8 of 1521

- 11016 Opinion of the Court 9 1980) (citing United Air Lines, Inc. v. Evans , 431 U.S. 553, 558 (1977) )

. Such b ackground evidence could , for example , show that the within

- period practices were caused by discrimination , see Jepsen v. Fla. Bd. of Regents , 610 F.2d 1379, 1383 (5th Cir. 1980), or that they

were severe or pervasive. The events at Jackson North do n either. Actions taken by managers at one location aren’t probative of what caused actions late r taken by different managers at a different location. Nor are they probative of the later actions ’ severity

. T he district court failed to consider whether the Jackson North events were part of the same, ongoing hostile work environment , but i ts error doesn’t affec t the outcome because they weren’t

. In Watson v. Blue Circle, Inc. , we held that whe re an employer confront ed a harassing supervisor and the employee thereafter experienced no further problems with that individual , the pre

confrontation events were n’t par t of the same practice as later
events . 324 F.3d 1252, 1259 (11th Cir. 2003). So too here. In 2014, Public Health Trust granted Harris ’s request ed transfer from Jackson North to Jackson Reeves. Because Harris changed physical work environments and thereafter encountered no discrimination at the hands of her former supervisors, the events at Jackson North can’t be deemed part of the same , continuing practice as those that occurred at Jackson Reeve s
. See McGullam v. Cedar Graphics, Inc. , 609 F.3d 70, 78 (2d Cir. 2010) (explaining that transfer to a “different sector of the building” is one reason prior events were unrelated ). USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 9 of 1510 Opinion of the Court 21

- 11016

2 Public Health Trust says that several incidents that occurred at Jacks on Reeves shouldn’t be considered because they weren’t caused by Harris’s race. Public Health Trust is correct that federal law doesn’t prohibit h osti lity in the workplace

— o nly hostility caused by impermissible discrimination

. See Oncale v. Sundowner Off shore Servs., Inc. , 523 U.S. 75, 80 (1998). Accordingly , Harris must ultimately show that “ but for the fact of her ” race , “ she would not have been the object of ” the action s that collectively constitut e her hostile

- work

- environment claim. Mendoza v. Borden, Inc. , 195 F.3d 1238, 12 47

– 48 & 1248 n.5 (11 th Cir. 1999) (en banc) ( assessing discrimination on an action

- by

- action basis and citing, among other cases, Brill v. Lante Corp. , 119 F.3d 1266, 1274 ( 7th Cir.1997 ) ) ; cf. O ncale , 523 U.S. at 81 (“ Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘ discrimina[tion]

. . . because of

. . . sex. ’”) (alteration in original) . At summary judgment, therefore, she must demonstrate a genuine factual dispute about the causation issue

. W e agree with Public Health Trust that three of the incidents weren’t caused by Harris’s race and, accordingly, shouldn’t be considered as part of the hostile

- work

- environment calculus. The first is straightforward: I n affirming the district court’s grant of summary judgment on Harris’s employment

- discrimination USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 10 of 1521

- 11016 Opinion of the Court 11

c laim, we have already concluded that her discipline was n’t based

on her race. 5 Second , the poke on the shoulder. The only evidence is Harris’s testimony: “ [O]n one occasion I was in the lab room, and Ms. Gianella came in and she tapped me on

— I was

— I had my back turned and she came and tapped me on my shoulder, and I said,

‘ Don’t touch me. Why are you touching me? ’” Doc. 32

- 5 at 81

– 82. T o be sure, that is evidence that the event occurred. But “d iscrimination is a comparative concept .” Lewis v. Cit y of Union City , 918 F.3d 1213, 1223 (11 th Cir. 2019) (en banc). Without evidence that the shoulder

- poke was caused by discrimination , such as that similarly situated white employees were treated differently , “there’s no way of knowing (or even inferring) that discrimination [was] afoot.” Id. Because Harris has provided neither, she hasn’t

5 Technically, the standards applicable to Harris’s employment

- discrimination and hostile

- work

- environment claims are different. For whatever reason, we haven’t appl ied the three traditional frameworks

— direct evidence, M cDonnell Douglas , and “ convincing mosaic ”

— to hostile

- work

- environment claims

. Others have. See ., e.g. , Lounds v. Lincare, Inc. , 812 F.3d 1208, 1221 (10th Cir. 2015); Clay v. United Parcel Serv., Inc. , 501 F.3d 695, 706 (6th Cir. 2007); Erenberg v. Methodist Hosp. , 357 F.3d 787, 792 (8th Cir. 2004); Bhatti v. Trustees of Bos. Univ. , 659 F.3d 64, 70 (1st Cir. 2011) ; cf. also Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 80 8 (11th Cir. 2010) ( en banc ) (noting that a hostile

- work

environment claim is just a species of disparate

- treatment claim)

. We needn’t go down that road today because , for reasons already explained , we conclude that Harris has n’t presented evidence to create a genuine dispute about whether her discipline was caused by her race. USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 11 of 1512 Opinion of the Court 21

- 11016 created a genuine dispute about whether the event was caused by her race. Finally, access to the supply closet. A t a we ekly staff meeting, Public Health Trust announced a change in its policy: Access to the supply closet would thereafter be limited to a few specific individuals. Harris wasn’t one of those given access. But s he hasn’t alleged that other similarly situate d white nurses had access

. Nor does she suggest in any other way

— beyond mere assertion

— that the change in policy or the decision to deny her access had anything to do with her race. Accordingly, Harris has n’t created a genuine factual dispute sufficient to survive summary judgment

. 3 On, then, to the merits of Harris’s hostile

- work

- environment claim. Of the original nine alleged events, we are left with only five: Harris’s supervisors at Jackson Reeves made one highly offensive comment, micromanaged and excessively monitored her work, solicited peers to report on her violations, made her perform clerical duties , and disbelieved or ignored her complaints of race discrimination.
Even considering Harris’s limited evidenc e in the light most favorable to her , these are not , given the totality of the circumstances, sufficiently severe or pervasive to alter the terms and conditions of her employment and create an abusive working environment. See Miller , 277 F.3d at 1275. On the one hand, Carre n o’s slur about b lack employees ’ poor work ethic wa s ignorant and extremely demeaning

. On the other hand, it was isolated , it wasn’t USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 12 of 1521

- 11016 Opinion of the Court 13 directed specifically at Harris , and it wasn’t as severe as the remarks that courts have foun d created hostile environment s
. See Smelter v. S outhern Home Care Servs. Inc. , 904 F.3d 1276, 1282 (11th Cir. 2018) ( describing seven similarly severe comments by the plaintiff’s supervisors); Ayissi

- Etoh v. Fannie Mae , 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (discussing “the n

- word”). From the limited evidence provided , t he re is no reasonable inference that the other conduct was particularly frequent , physically threatening , or humiliating or

— even considered together with Carreno’s
statement

— that it unreasonably interfere d with Harris’s job performance

. We thus conclude that the district court properly gra nted summary judgment to Public Health Trust on Harris’s hostile

work

- environment claim

. C

Title VII and the FCRA prohibit an employer from retaliating against an employee for opposing an unlawful employment practice. See 42 U.S.C. § 2000e

- 3(a) ; Fla. Stat. § 760.10(7).A retaliation claim based on circumstantial evidence is analyzed under the McDonnell Douglas framework

. See Crawford v. Carroll , 529 F.3d 961, 975

– 76 (11th Ci r. 2008)

. If the plaintiff establishes

a prima facie case of retaliation , and the employer proffers a legitimate, nondiscriminatory reason for its actions, then the plaintiff must show that the employer’s stated reason is pretextual. See Gogel v. Kia Mot ors Mfg. of Ga

. , Inc. , 967 F.3d 1121, 1135 (11th Cir. 2020) ( en banc )

. In assessing pretext, the court “must evaluate USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 13 of 1514 Opinion of the Court 21

- 11016 whether the plaintiff has demonstrated ‘ such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer ’ 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) (quoting Sheridan v. E.I. DuPont de Nemour s & Co. , 100 F.3d 1061, 1072 (3d Cir. 1996 ) )

. Ultimately, the employee ’s burden is to prove that “the desire to retaliate was the but

- for cause” of the challenged action. Univ ersity of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 352 (2013)

. Here, becau se the district court found that Harris’s retaliation claims failed o n several grounds , we can affirm on any one of them

. See Sapuppo v. Allstate Floridian Ins. , 739 F.3d 678, 680 (11th Cir. 2014)

. We conclude that, even if Harris presented a prima facie case, she failed to show that the employer’s proffered reasons for her discipline and termination were pretextual. Public Health Trust stated its reasons

— primarily tardiness, ab s en c es, and insubordination

— in six disciplinary

- acti on reports , two suspension letters, and a termination letter. Other than her own testimony, Harris offers essentially no evidence that she wasn’t tardy, absent , or insubordinate. Nor does she provide any basis for concluding that the hospital’s timekeeping software’s records were inaccurate. 6

6 Harris also cites a co

- worker’s testimony that she ( i.e. , the co

- worker) did “not have knowledge of Ms. Harris being excessively tardy or absent” and “never witnessed Ms. Harris being insubordinate.” Doc. 42

- 5. But even taking them in the light most favorable to Harris, th o se general attestations don’t USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 14 of 1521

- 11016 Opinion of the Court 15

Harris separately argues that even if the underlying facts are
true , others would n’t have been punished for the same underlying facts

— and , therefore, t hat her treatment was the product of race discrimination. While that would support a claim if true , Harris offers only “ mere conclusions and unsupported factual allegations” of it. Ellis , 432 F.3d at 1327. She hasn’t provided any evidence that , for inst ance, she was treated worse than any other nurse with a spotty attendance record. And that is dispositive . Because Harris offers nothing that would allow a fact

- finder to conclude that “the desire to retaliate was the but

- for cause of the challenged empl oyment action , ” Nassar , 570 U.S. at 352 , the district court correctly concluded that she has failed to create a genuine dispute about whether Public Health Trust’s stated reasons were pretextual. 7 III For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED.

create a genuine dispute about whether the documented, specific instances

— which the coworker doesn’t deny

— actually occurred.

7 Neither of the other two methods of showing discrimination appl ies . Harris has n’t presented any direct evidence of retaliation. And b ecause Harris has n’t raised a convincing

- mosaic argument, our precedents hold that she has forfeited it

. See supra at 4

. USCA11 Case: 21-11016 Document: 51-1 Date Filed: 10/04/2023 Page: 15 of 15