## FILED U.S. COURT OF A

PPEALS ELEVENTH CIRC UIT MAY 14, 2003 THOMAS K. KAHN

CLERK

* Honorabl

e Donal d C. Pogue, Jud

ge, U ni te d St ates Cour t of I nter nationa l Trade , sitt ing by designat ion. [PUBLISH]

IN THE U NITED STATES COU RT O F APPEALS FOR TH E ELEVE NTH C IRCU IT

_____________________________

No. 02-10861

_____________________________ D. C. Docket No. 00-049 12 CV-JLK ALMA KNIGHT, Plaintiff-Appellant,

versus BAPTIST HO SPITAL OF M IAMI, INC ., a Florida corp oration, Defendan t-Appel lee.

_________________________________________ Appeal from the United Sta tes District Court for th e Southern

District of Fl

orida

_________________________________________

(May 14, 2003) Before EDMON DSON, Chief Judge, ANDERSON, Circui t Ju dge, and

POGUE * , Judge.2

PER CURI AM: In th is Ti tle VI I racial di scrim

inat ion ca se, Alm

a Knig ht appeals the di stri ct court’s gr

ant of su mmary j udgment

to her f ormer empl

oyer, Bapti st Hospital

of Miami, Inc. (B aptist). The district court co ncluded that K night failed to establish a prima facie cas e. W e affirm.

BACKG ROUND

In May 1 996, K night, an African-America n female, wa s hired by Ba ptist to work as a clin

ical n urse in the surg ical ser vices depart

ment. Sh

e worked as a Charge Nur

se and had v

ariou s responsi

biliti es. Knight was su

pervi sed by Isab el Hotchkiss (Nurse Ma nager) and Jessy Theisen (Assistant Nurse Ma nager). Hotchkiss an

d Theisen were su

pervised by

Michele Ryder t

he Assistan

t Director

of Surgi cal Ser vices . Kni ght cl

aims t hat Ryder

often treat ed her wi th i ntol erance, unf airn ess, and a l

ack of obj ectiv

ity . Kni ght was em

ploye d by Baptist unt

il her termi nation on 23 May 2000. Baptist utilizes a 4 -step disc iplinary process : (1) “informal discuss ion and agreement, ” (2) “d iscussion and formal written agree ment,” (3) “ decision-mak ing leave,” an

d (4) term

inati on. Decisi on-maki

ng leav e is a paid day

of suspensi

on for3

the employee to decide whether the y want to c ontinue work ing for Baptist. D uring decision -makin g leave,the empl

oyee is requ

ired to dr aft and t o submit an “action plan ” tha t pro pos es a solu tion t o the note d de ficien cies . If no “a ctio n pla n” is submitted, the employee must eit her resign or face termi

nation. Knight was given d ecision-making leave on 9 M ay 2000 . Knight’s de cisionmaking leave aro se out of an incide nt where K night was rude and disres pectful to two other

employees: Patrice Hines and Doctor Wendy Whit

tick. Hines

compl ained to her supe rvisor, Ro bert Zaya s, abo ut Knight’s cond uct and then filed a c omplaint with Ryder about the incident. Ryder inves tigated the co mplaint. She then me t with Hotchk iss and The isen, and they de cided to p lace Knight on de cision-making leave b ased o n the incident and Knight’s “w ell documented disciplinary history.” This four-year history incl uded several

perform ance issues: (1) fai

lin g to check ref

riger ator temper

atures; (2) f ailing to compl

y with latex -all ergy procedur

es; (3)schedul

ing standby cases without permissi on; (4) f aili ng to send f

or patien ts in a t imel y manner ; (5)

unnecess arily calling in staff; (6) on other occa sions, ac ting rudely and disrespectf

ull y toward coworkers; an d (7) havi

ng substan

tial problems of absente eism and tard iness. Knight ea rlier received forma l counseling, the se cond1 The ret aliat ion c laims ar e no issu e in t his ap pea l. 4 ste p in th e dis ciplin ary p roc ess , for her t ard ines s an d for unne ces sar ily ca lling in staff. Along wi

th the deci

sion-m aking l eave, Kni ght was asked to subm it an act ion plan covering tw o problems : her tardiness a nd her unprofes sional and disre spectful beh avio r. Fo llow ing he r de cisio n-ma king le ave , on 11 M ay 2 000 , Kn ight tu rned in an action plan. Knight’s action p lan adequa tely addres sed her ta rdiness issue s but did not m

ention her behavi

or problem

s. Knig ht was asked to tur

n in a secon

d action plan addressing this i ssue by 12 M ay. Knight mi ssed this deadline. Knig ht submit ted her second act

ion pl an on 22 May. Ry

der rej ected th

is plan as inadeq uate, be cause the “action p lan” was argumentative and propos ed no solution. The p lan merely restate d Knight’s vers ion of the incident with Hines and said that it was “petty.” On 23 M ay 2000, Knight’s employment was terminated. Knig ht f il ed a grievance t

hroug h Bapti st’s gr

ievan ce progr am. Her termi nation was upheld. Kn

ight then f iled t his lawsuit i

n the Sout

hern Dist rict of Florid a. S he a llege d tha t she wa s the victim of dis par ate trea tmen t and reta liatio n in violation of Title VII of t he Civil Righ

t’s Act of 1964, 42 U .S.C. § 2000 (e) et seq., 42 U.S.C . § 1981, and the Florida Civil Righ ts Act of 1992, Florida Statutes, § 760.10 (2 000). 1 Bap tist m ove d for summ ary j udgm ent, argu ing tha t Knig ht co uld5

not estab lish a prima facie cas e of discrimination bec ause she could not identify a similarly situated person from a different class w ho was trea ted more favorably. In response, Knight pointed to Jean Arnold. Arnol d was a Caucasian

nurse at Bapti st. Kni

ght cl aims t hat Ar nold h ad signif icant tardiness and behavioral problems but was not severely disci plined. Arnol d’s 1997 perf

ormance eval

uati on not

ed that “[o]n occas ion, severe, unproduct

ive, an d inappropr

iate exch anges occur wi

th coworkers.” Sh

e was not placed on deci sion-m

aking l eave, and her

employm

ent was not ter

minat ed. The dist rict c ourt con clud ed t hat A rnold and Knigh t we re no t simila rly situated and granted Baptist’s motion for sum mary judgment.

DISCU SSI ON

Summary judgment is o nly appropriate where the re “is no ge nuine issue as to any mater

ial f act and . . . t

he movi ng party is enti tled to j udgment

as a matter of law.” Fed. R . Civ. P. 56(c). W e review a district court’s grant of summary judgment de novo . Pritch ard v. Sout

hern Co. Serv s. , 92 F.3d 11 30, 1132 (11th Cir. 1996). We view all the evidence, and make all reasonab le factual inferences , in the2 The dist rict co urt also gr anted summary judgment because , even if Knight c ould es tabl ish a

pri ma f aci e cas e, Kn igh t coul d not s how that Bapt ist’s no n-discriminat ory re asons fo r the ir actio ns were pretextual. Because we agree that Knight has n ot sho wn a p rima facie case, we affirm the g rant of sum mary judgm ent wi thout disc ussi ng thi s is sue. 6 light most favorable to the nonmovi ng party. Mani cci a v. Bro wn , 171 F.3d 1364, 1367 (11th Cir. 1999). The dist rict c ourt gran ted Bap tist’ s mo tion fo r sum mary judg ment bec aus e it determ ined t hat Kn igh t fai led to establ ish a prim

a faci e case. 2 Where dir ect evidence o f discrimination is absent, a plaintiff establishes a c ircumstantial, prima faci e case of r

acial discr imi nati on based on

dispar ate tr eatmen t by showing

several thin gs: “(1) [ she] belon

gs to a racial mi

norit y; (2) [ she] was subjected t o adverse job action; (3) [her] employer treated s imilarl y situated employees o utside [her] classifi cation more

favor ably; and (4)[she] was quali fi ed to do th

e job.” Holifie ld v. Reno , 115 F.3 d 1555 , 1561 -62 (11th C ir. 1997)(c iting McDonnell Dougl as Corp. v. Green , 93 S.Ct. 1817 , 1824-25 (1973)). For th e purpose o f th

e motion for

summa ry ju dgmen t, Bapti st concede s that (1) Kni ght was a member

of a racial mi

norit y; (2) sh e was subject to adver

se employment ac tions -- including being placed on a dec ision-making day and being fired -- and (3) she was qualified for her job. Baptist argues, and the district court3 Knigh t also argues that th

e di stri ct cou rt err ed b y re qui rin g he r to poi nt toan iden

ticall y si tuated employ ee as o ppo sed to a similar ly situated empl oyee. K nig ht cla im s that had the di strict court

used the proper sta ndar d it wo uld ha ve fo und Knight and A rno ld t o be similar ly situ at ed. While the district courtdid say

that Arnold’s record was not “n earl y i den tica l” to K ni ght’ s, we do not believe that the dist rict co urt tho ugh t “id ent ical” was t he key or that the district court applied the wrong stan dard.

4 Knight alle

ges that she was su bject t o tw o adve rse ac tions: she was p laced o n decision- making leave, and her emplo yment was te rmina te d. We fo cus ou r inq uir y o n whe ther K night and A rno ld were sim ilarl y si tuated in relation to the decis ion-maki ng leav e, that is, whether

Arnold’s conduct was subs ta ntia lly

similar to t he condu ct t hat r esulte d in Knight’s de cision-making leave. It is un contested that Knigh

t’s terminati

on was based

on her fai

lure to submi

t anacce ptabl e acti on pl an a t the e nd of her dec ision-making day. Kni ght points to no employe

es who were not terminated af ter they fai

led to submit an ac cept able act ion plan. Knight can establ ish a prima facie ca se based on her t erminatio n, howeve r, if the decisi on to give her

a decisi on-makin g day was di

scrimi natory: the termin

ation, which 7 concluded,that Kni

ght cann ot establi sh a prim a facie case becau

se she cannot sh

ow that simil arly situated employees of other r aces were trea ted better. To show that employee s are similarly situated, the plaintiff must show that the “employe es are s imilarly situated in all relevant respec ts . . . . In de termining whether e mployees a re similarly situated . . . it is nec essary to consider w hether the employees are involved in or acc used of the same o r similar conduct and are disci pli ned in dif feren t ways.” Id. at 1562. Knight argues that J ean Arnold w as a similarly situated C aucasian nurs e who was tre ated more favorably. 3 Knight was placed on decision-making leave after a review of

her enti re record. Kn

ight claim s that Arn

old “commi

tted sim ilar , if not more egregious , acts o f misconduct.” Desp ite Arnold’s a cts of miscond uct, Knight point s out t hat Ar nold was n

ot pla ced on deci sion-

makin g leav e. 4arose out of the deci sion -maki ng day , would b e im proper as we

ll

. 5 Kni ght ar gues that A rnol d’s h is tory i ncl udes two add iti onal in cid ents of rude and disrespectf

ul beh avi orthat make Arnol

d’s record worse then hers. First, Kn ight compl

ained that Arnol

d was rude to her. The evi

dence, howev

er, ind icates

that b oth A rnol d an d Kn ig ht m ade s eve ral com pl ai nts against each other and that Ryder di d not believ

e these complai

nts accurately ref

lec ted a n actual pro blem. Nei

ther K ni ght n or Arn old w as di sci pli ned bas ed on the com plai nts, and Arnold’s com pl ai nts agai nst K ni ght we re not c onsi dered in the de cis ion to give K night deci sion-maki ng leav e. Second, Knigh

t says (and Arn

old admi tted in her deposition) that Arn old was ki

cked out of Dr

. Puente’s operati

ng room on thr ee or four occas

ions

. But, no evidence ex ists that Dr. Puente ever complai ned abou t thes e ev ents to ma nag em ent.While A

rnold’s “feud” wit h Dr. P uente might have justif ied giv ing her a de cisi on-ma kin g day , unl ess Ry der, Hotchkiss, or Theisen (Arnold and Knight’s supervisors) knew o f the event s, the events cannot be conside red in det ermining whethe r Knight a nd Arno ld are si mi larl y si tuated. See Nix v. WLCY Ra dio/Ra hall Communicatio ns , 738 F.2d 1181, 1186 (11th Cir. 1984)(“[I]f an em

ployer appl

ies a rul e diff erently to people it beli

ev es a re d iffere ntly situated, no discrim

inatory i ntent has been s

hown.”(quoting Chesch

eir v. Li berty Mut. In s. Co. , 713 F.2d 1142, 1148 (5t h Cir. 1983)). “Discrimi nation is a

bou t a ct ual knowl

edge , and real in tent, n ot const ruct iveknowl

edge an d assum ed in tent.” Silv

era v. Orange County Sch. Bd. , 244 F.3d 1253, 1262 (11th C

ir. 2001 ). 8 A review o f Knight’s and Arno ld’s cumulative rec ords reve als that the tw o were not similarly situated. While their histories of problems with cow orkers are simi lar, Ar nold’s recor

d is substan

tial ly bett er then Kn

ight ’s when it com

es to job perform ance and tardi

ness. Both Arnold a nd Knight have do cumented histo ries of problems with cowork ers. Knight’s history includes the incident involving Ms. H ines and Dr. Whitt ick (wh ich l ed to the decisi

on-ma king leave ) and t

wo prior documen

ted inst ances of rude an d disr espectf ul con duct. Ar nold’ s record i

nclu des two instances where sur

geons com

plai ned about

her di srespectf

ul at tit ude. 5 While

Arnol d was repri manded af

ter th e inst ances, she was not placed on deci sion- makin g leav e. Had6 Kni

ght di sputes tha t som e of these ev ents occurr

ed. Wh at is i mportant i

s that thes e even ts were documented

in her record. Even if, as Kn ight claim s, the eve nts did no t act ually occur , the y can be considered

if Ry der (the decisi

on-maker) honestly

beli eved they oc curred. See Jones v. Gerwe ns , 874 F.2d 1534, 1540 ( 11th C

ir. 1 989) (

“Th e la w is cle ar tha t, eve n i f a T itl e VII c lai man t did not in f act co mmit the vi

olati on . . . an emplo yer succ essfully rebut s any prima facie cas e of dispa rat e tr eatment by s howin g that it h onestl y be li eved th e emp loy ee comm itted the v iol ation.” ). 9 Knigh t’s decision-maki

ng leav e been based solel

y on her beh

avioral problems, Arnol d mig ht hav e been si mil arly situ ated. Bu t Knight’s

decisi on-ma king leave was based on a revi ew of her ent ire recor d, incl uding her perf ormance and t

ardiness issues. Knig ht’s h istor y of pe rfor mance pr oblem s is su

bstant ially worse than Arnold’s. Knigh

t’s four -year history i

ncludes docu

mented i nstances of

these thi ngs: (1) failure to check refrigerator tempe ratures, (2 ) failure to comply with latex-a llergy procedures, ( 3) schedul ing st andby cases with

out permi

ssion, ( 4) fai lure t o send for pat ients in a time ly mann er, a nd (5 ) unne ces sar ily calling in sta ff. 6 Arnold’s s evenyear history includes only one doc umented pe rformance issue : her failure to documen t a probl em wit h the b lood r

efri gerat or on 5 Ju

ne 2000. Ar

nold was g

iven an Agreeme nt for Performance Improvement b ased o n this event and re quired to write an acti on pla n on th e bottom of th e Perf ormance Impr

ovemen t for m. Arn old’s perform ance hist ory is su bstantially

better th an Knig ht’s.7 The e valua tio ns we re g rad ed o n a fo ur poi nt scale, w ith 4.00 be ing “Exceeds Exp ectat ions;” 3.00 bei ng “ Ful ly Mee ts Exp ect at ions ; 2. 00 b eing “ Minimally Meets Expectations;” 1.00 bei ng “Does Not Achieve Expe

ctations.” 8 The record d

oes not contai

n a Jan uary 1 998 eva

luati on for Ms . Arnol

d. 10 Knight and Arnold’s problems w ith absenteeism and tardiness are very different. While bo th had prob lems in this area, the ir problems w ere not of the s ame nature. Arnold’s record indicates someone who had problems, but was improving

. Her record al so indicates that sh e took on extr

a responsibi

lit ies to compen

sate for some of her p roblems. K night’s problems progress ively worsene d, and d espite counseling, she made little, if any, effort to comp ensate for he r problems. The dif feren ces between Kn

igh t and Ar nold a re apparen

t fr om the performanc e evaluations. In December 1995, Ar

nold recei

ved a 1.74 7 in the Depe ndability/Reliability category (

where absenteei sm and tardi ness are ref

lected),and the eval

uation indi cates th at Arnold “agr

eed to come

in on days of f to h elp cover the

departm ent as needed.” In Jan

uary 1997, Ar

nold recei

ved a 3.13. In Jan

uary 1999, sh

e received a 3.2, and the evaluation as ked Arno ld to work on reducing her a bsence s and reflected that she had 2 e xcused abs ences and 2 late days during the year. 8 In Januar y 2000, she recei

ved a 3.04, and the eval uati on not

ed that , alt

hough she was late 12 ti mes, she worked ext

ra on more t

han 26 occasion

s. Arnol d’s absenteeism9 The record d oes not in dica te how Arn

old perf ormed af ter recei vin g written counsel ing

. 10 The term

“occurren

ces” en compas ses both excus ed abs ences and tardi es. 11 and tardi ness problem

s resurf aced in earl

y 2000, and she was coun seled because she had been late 9 tim

es and absent 4 ti

mes duri ng a seven-

month per

iod. These probl ems were al so ref

lecte d in h

er 5 June 2000 Agre ement for Pe rfor mance Improvement. While Arnold d id have prob lems with abs enteeism and tardiness, the record does not i

ndicate t hat her pr

oblems were near

ly as sever

e as Knigh

t’s. 9 Knight’s reco rd is substa ntially less good. In he r 1997 e valuation, Knight received a 2.9 2 in Dependa bility/Reliabil ity. In 1998 this had fallen to 2.13. In Octob er 1998 , Knight was counseled on her tardines s and told tha t she “ne eds to come to work on time and have no more occurrences.” 10 Desp ite this warning, Knig ht accu mul ated 16 occu

rrence s (7 excused absences an d 9 tardi es) between

her 1998 and 1999 ev

aluat ions a nd recei ved a 1.73 on

the 1999 ev

aluat ions. Knig

ht’s downw ard trend c ontinued; betw een her 19 99 and 2 000 eva luations she accumulated 14 occurrences and she rece ived a 1.38 on the 2000 evaluation. Nothing in th e record in

dicates th

at Knig ht compensat

ed for her

absence or tardi

ness by working extra hours at the hospital. In the li ght of the enti

re record, Knight and Arnold are not simi larly si tuated. Knig ht’s docu mente d perf

ormance and tar

dines s probl ems were mu ch worse th

an12

Arnold’s in bo th number and na ture. Knight’s p roblems did no t improve after she

was co unseled and w arned in writing about them. Because Arnold and Knight are not similarly situated, that A rnold was not also plac ed on de cision-making leave creates no i

nferen ce of discr

imi nation against Knigh t. Kni ght has f

ailed t o establi sh a prima facie case o f discrimination. The district court’s grant of summary ju dgm ent is AFF IRMED. AFFIRMED

.13

POG UE, J udge, diss enting: In my view, the major

ity opi nion’s di scussion addr

essing t he comparabilit

y of Knight and Arnol

d’s job perfor

mance does not dr

aw reasonable i

nferen ces in f avor of the plaint iff. See Reeves v. San derson Pl umbi ng Pro ducts, I

nc. , 530 U .S. 133, 1 50-1 (2000). Drawing reason able in ferences i

n plai ntif f’s fav or , on th e record here, a

rea son able jury cou ld co nclud e tha t M s. K night a nd M s. A rnold are simi larl y situ ated. With regard to t

heir do cumen

ted histories of prob lems with cow orkers, the majority appea rs to agre e tha t M s. K night a nd M s. A rnold are simila rly situated. T he majority claim

s that th e diff erences in th eir perf

ormance histories an

d records of absenteeism

and tard ines s w ould precl ude a reason

able f act-f inder from fi ndin g them comparable on the basis of their cumul ative employment record as a whole. With rega rd to their perform ance hist ories, however, because Arn old was gi

ven

an Agreement f

or Per form ance Improvement for the blood refrigerator incident (a writt en disciplinary action), a reasona ble jury c ould c o nclu de that the em ploye r consi dered

that i nfr action to be m

ore seri ous than the incidents documen ted in Knig ht’s record (mere ora l reprimands). With regard to absenteeism and tardines s, the rec ord indicates that both Knight and Arnold were given an Agreement f or Performance Improvement, aformal (written) disciplinary

act ion be cau se o f th eir absente eism or tardines s. Acc ordingly, draw ing14

rea son able inferences in favor of the plaintif f, Knight and Arnold appear similarl y situat ed in th is regar d. Acc ord in gly, with regard to Knight’s and A rnold’s res pective emp loyment records taken as a whole, the employer’s own progre ssive disci pli nary system

provides

a bas is to infer t hat K night a nd A rnold are si mil arly situ ated. Th e fact

that A rnold had twice previously bee n given an Agreeme nt for Pe rfor mance Impro vemen

t, two f ormal (written) disci

pli nary action

s whereas t

he in ciden t that led to Knig ht’s termi

nati on was only h er seco nd formal (written) discipline pro vides a rea sonable b asis for a jury to conclude that Arn

old’s hi storical

record wa s at le a st as negati ve as Knig

ht’s. Conse quently, a reasonable j ury coul d conclude

that the defendant’s a ction with regard to Knig ht’s prob lem wi th her coworkers (

requi rin g an Ag reemen t for Performanc e Improvement and imposi ng a suspensi

on or decisi

on-maki ng day) was not e ven-h

anded when compared to i

ts response to Ar

nold’s s im ilar

problems. Moreover, Kni ght’s 2000 evaluation, issue d contem poraneously wi

th th e disci pli nary action

at issue here, rated her performanc e overal

l as 3.3 9, m ore than “fully meets expectations.” Therefore, a

rea son able jury could find the employe r’s explana tion for its actions lack s credibility.