FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 MAY 14, 2003 

 THOMAS K. KAHN 

 CLERK

 

*Honorable Donald C. Pogue, Judge, United States Court of International Trade, sitting by

designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 02-10861

_____________________________

D. C. Docket No. 00-04912 CV-JLK 

ALMA KNIGHT,

Plaintiff-Appellant,

versus

BAPTIST HOSPITAL OF MIAMI, INC.,

a Florida corporation,

Defendant-Appellee.

_________________________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________________________

(May 14, 2003)

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE*,

Judge.
2

PER CURIAM:

In this Title VII racial discrimination case, Alma Knight appeals the district

court’s grant of summary judgment to her former employer, Baptist Hospital of

Miami, Inc. (Baptist). The district court concluded that Knight failed to establish a

prima facie cas e. We affirm.

BACKGROUND

In May 1996, Knight, an African-American female, was hired by Baptist to

work as a clinical nurse in the surgical services department. She worked as a

Charge Nurse and had various responsibilities. Knight was supervised by Isabel

Hotchkiss (Nurse Manager) and Jessy Theisen (Assistant Nurse Manager). 

Hotchkiss and Theisen were supervised by Michele Ryder the Assistant Director of

Surgical Services. Knight claims that Ryder often treated her with intolerance,

unfairness, and a lack of objectivity. Knight was employed by Baptist until her

termination on 23 May 2000.

Baptist utilizes a 4-step disc iplinary process: (1) “informal discussion and

agreement,” (2) “discussion and formal written agreement,” (3) “decision-making

leave,” and (4) termination. Decision-making leave is a paid day of suspension for
3

the employee to decide whether they want to continue working for Baptist. During

decision-making leave, the employee is required to draft and to submit an “action

plan” tha t propos es a solution to the noted de ficiencies. If no “action plan” is

submitted, the employee must either resign or face termination. 

Knight was given decision-making leave on 9 May 2000. Knight’s decisionmaking leave arose out of an incident where Knight was rude and disrespectful to

two other employees: Patrice Hines and Doctor Wendy Whittick. Hines complained

to her supe rvisor, Robert Zaya s, about Knight’s conduct and then filed a complaint

with Ryder about the incident. 

Ryder investigated the complaint. She then met with Hotchkiss and The isen,

and they de cided to place Knight on de cision-making leave based on the incident

and Knight’s “well documented disciplinary history.” This four-year history

included several performance issues: (1) failing to check refrigerator temperatures;

(2) failing to comply with latex-allergy procedures; (3) scheduling standby cases

without permission; (4) failing to send for patients in a timely manner; (5)

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

disrespectfully toward coworkers; and (7) having substantial problems of

absente eism and tardiness. Knight earlier received formal counseling, the second
 

1

 The retaliation claims are no issue in this appeal.

4

step in the dis ciplinary process, for her tardiness and for unnecessarily calling in

staff. 

Along with the decision-making leave, Knight was asked to submit an action

plan covering two problems: her tardiness and her unprofessional and disre spectful

behavior. Following her decision-making le ave, on 11 May 2000, Knight turned in

an action plan. Knight’s action plan adequa tely addressed her ta rdiness issue s but

did not mention her behavior problems. Knight was asked to turn in a second action

plan addressing this issue by 12 May. Knight missed this deadline. 

Knight submitted her second action plan on 22 May. Ryder rejected this plan

as inadequate, because the “action plan” was argumentative and propos ed no

solution. The plan merely restated Knight’s version of the incident with Hines and

said that it was “petty.” On 23 May 2000, Knight’s employment was terminated. 

Knight filed a grievance through Baptist’s grievance program. Her

termination was upheld. Knight then filed this lawsuit in the Southern District of

Florida. She alleged tha t she was the victim of disparate trea tment and reta liation in

violation of Title VII of the Civil Right’s Act of 1964, 42 U.S.C. § 2000(e) et seq.,

42 U.S.C. § 1981, and the Florida Civil Rights Act of 1992, Florida Statutes, §

760.10 (2000).1 Baptist moved for summary judgment, arguing tha t Knight could
5

not establish a prima facie cas e of discrimination bec ause she could not identify a

similarly situated person from a different class who was trea ted more favorably. In

response, Knight pointed to Jean Arnold. 

Arnold was a Caucasian nurse at Baptist. Knight claims that Arnold had

significant tardiness and behavioral problems but was not severely disciplined. 

Arnold’s 1997 performance evaluation noted that “[o]n occasion, severe,

unproductive, and inappropriate exchanges occur with coworkers.” She was not

placed on decision-making leave, and her employment was not terminated.

The district court concluded that Arnold and Knight we re not similarly

situated and granted Baptist’s motion for summary judgment. 

DISCUSSION

Summary judgment is only appropriate where the re “is no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). We review a district court’s grant of summary

judgment de novo. Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.

1996). We view all the evidence, and make all reasonable factual inferences, in the
 

2

 The district court also granted summary judgment because, even if Knight could establish a

prima facie case, Knight could not show that Baptist’s non-discriminatory reasons for their actions

were pretextual. Because we agree that Knight has not shown a prima facie case, we affirm the grant

of summary judgment without discussing this issue. 

6

light most favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364,

1367 (11th Cir. 1999). 

The district court granted Baptist’s motion for summary judgment bec ause it

determined that Knight failed to establish a prima facie case.2 Where direct

evidence of discrimination is absent, a plaintiff establishes a c ircumstantial, prima

facie case of racial discrimination based on disparate treatment by showing several

things: “(1) [she] belongs to a racial minority; (2) [she] was subjected to adverse job

action; (3) [her] employer treated similarly situated employees outside [her]

classification more favorably; and (4) [she] was qualified to do the job.” Holifie ld

v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997)(citing McDonnell Douglas Corp.

v. Green, 93 S.Ct. 1817, 1824-25 (1973)). 

For the purpose of the motion for summary judgment, Baptist concedes that

(1) Knight was a member of a racial minority; (2) she was subject to adverse

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 court
 

3

 Knight also argues that the district court erred by requiring her to point to an identically situated

employee as opposed to a similarly situated employee. Knight claims that had the district court used

the proper standard it would have found Knight and Arnold to be similarly situated. While the district

court did say that Arnold’s record was not “nearly identical” to Knight’s, we do not believe that the

district court thought “identical” was the key or that the district court applied the wrong standard.

 

 

4

 Knight alleges that she was subject to two adverse actions: she was placed on decision-making

leave, and her employment was terminated. We focus our inquiry on whether Knight and Arnold

were similarly situated in relation to the decision-making leave, that is, whether Arnold’s conduct was

substantially similar to the conduct that resulted in Knight’s decision-making leave. It is uncontested

that Knight’s termination was based on her failure to submit an acceptable action plan at the end of

her decision-making day. Knight points to no employees who were not terminated after they failed

to submit an acceptable action plan. Knight can establish a prima facie case based on her termination,

however, if the decision to give her a decision-making day was discriminatory: the termination, which

7

concluded, that Knight cannot establish a prima facie case because she cannot show

that similarly situated employees of other races were treated better. 

To show that employee s are similarly situated, the plaintiff must show that the

“employe es are similarly situated in all relevant respec ts . . . . In de termining

whether employees a re similarly situated . . . it is necessary to consider whether the

employees are involved in or accused of the same or similar conduct and are

disciplined in different ways.” Id. at 1562. 

Knight argues that J ean Arnold was a similarly situated Caucasian nurs e who

was tre ated more favorably.3 Knight was placed on decision-making leave after a

review of her entire record. Knight claims that Arnold “committed similar, if not

more egregious, acts of misconduct.” Despite Arnold’s a cts of misconduct, Knight

points out that Arnold was not placed on decision-making leave.4

 
arose out of the decision-making day, would be improper as well. 

 

5

 Knight argues that Arnold’s history includes two additional incidents of rude and disrespectful

behavior that make Arnold’s record worse then hers. First, Knight complained that Arnold was rude

to her. The evidence, however, indicates that both Arnold and Knight made several complaints

against each other and that Ryder did not believe these complaints accurately reflected an actual

problem. Neither Knight nor Arnold was disciplined based on the complaints, and Arnold’s

complaints against Knight were not considered in the decision to give Knight decision-making leave.

Second, Knight says (and Arnold admitted in her deposition) that Arnold was kicked out of Dr.

Puente’s operating room on three or four occasions. But, no evidence exists that Dr. Puente ever

complained about these events to management. While Arnold’s “feud” with Dr. Puente might have

justified giving her a decision-making day, unless Ryder, Hotchkiss, or Theisen (Arnold and Knight’s

supervisors) knew of the events, the events cannot be considered in determining whether Knight and

Arnold are similarly situated. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186

(11th Cir. 1984)(“[I]f an employer applies a rule differently to people it believes are differently

situated, no discriminatory intent has been shown.”(quoting Chescheir v. Liberty Mut. Ins. Co., 713

F.2d 1142, 1148 (5th Cir. 1983)). “Discrimination is about actual knowledge, and real intent, not

constructive knowledge and assumed intent.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253,

1262 (11th Cir. 2001). 

8

A review of Knight’s and Arnold’s cumulative records reve als that the two

were not similarly situated. While their histories of problems with coworkers are

similar, Arnold’s record is substantially better then Knight’s when it comes to job

performance and tardiness.

Both Arnold and Knight have documented histories of problems with

coworkers. Knight’s history includes the incident involving Ms. Hines and Dr.

Whittick (which led to the decision-making leave) and two prior documented

instances of rude and disrespectful conduct. Arnold’s record includes two instances

where surgeons complained about her disrespectful attitude.5 While Arnold was

reprimanded after the instances, she was not placed on decision-making leave. Had
 

6

 Knight disputes that some of these events occurred. What is important is that these events were

documented in her record. Even if, as Knight claims, the events did not actually occur, they can be

considered if Ryder (the decision-maker) honestly believed they occurred. See Jones v. Gerwens, 874

F.2d 1534, 1540 (11th Cir. 1989) (“The law is clear that, even if a Title VII claimant did not in fact

commit the violation . . . an employer successfully rebuts any prima facie case of disparate treatment

by showing that it honestly believed the employee committed the violation.”). 

9

Knight’s decision-making leave been based solely on her behavioral problems,

Arnold might have been similarly situated. But Knight’s decision-making leave was

based on a review of her entire record, including her performance and tardiness

issues. 

Knight’s history of performance problems is substantially worse than

Arnold’s. Knight’s four-year history includes documented instances of these things:

(1) failure to check refrigerator tempe ratures, (2) failure to comply with latex-a llergy

procedures, (3) scheduling standby cases without permission, (4) failure to send for

patients in a timely manner, and (5) unnecessarily calling in staff.6 Arnold’s s evenyear history includes only one documented pe rformance issue : her failure to

document a problem with the blood refrigerator on 5 June 2000. Arnold was given

an Agreement for Performance Improvement based on this event and required to

write an action plan on the bottom of the Performance Improvement form. Arnold’s

performance history is substantially better than Knight’s.
 

7

 The evaluations were graded on a four point scale, with 4.00 being “Exceeds Expectations;”

3.00 being “Fully Meets Expectations; 2.00 being “Minimally Meets Expectations;” 1.00 being “Does

Not Achieve Expectations.” 

 

8

 The record does not contain a January 1998 evaluation for Ms. Arnold. 

10

Knight and Arnold’s problems with absenteeism and tardiness are very

different. While both had problems in this area, their problems were not of the s ame

nature. Arnold’s record indicates someone who had problems, but was improving. 

Her record also indicates that she took on extra responsibilities to compensate for

some of her problems. Knight’s problems progressively worsened, and despite

counseling, she made little, if any, effort to compensate for he r problems. The

differences between Knight and Arnold are apparent from the performance

evaluations. 

In December 1995, Arnold received a 1.747 in the Dependability/Reliability

category (where absenteeism and tardiness are reflected), and the evaluation

indicates that Arnold “agreed to come in on days off to help cover the department as

needed.” In January 1997, Arnold received a 3.13. In January 1999, she received a

3.2, and the evaluation asked Arnold to work on reducing her absence s and

reflected that she had 2 excused abs ences and 2 late days during the year.8 In

January 2000, she received a 3.04, and the evaluation noted that, although she was

late 12 times, she worked extra on more than 26 occasions. Arnold’s absenteeism
 

9

 The record does not indicate how Arnold performed after receiving written counseling. 

 

10 The term “occurrences” encompasses both excused absences and tardies. 

11

and tardiness problems resurfaced in early 2000, and she was counseled because

she had been late 9 times and absent 4 times during a seven-month period. These

problems were also reflected in her 5 June 2000 Agreement for Performance

Improvement. While Arnold did have problems with abs enteeism and tardiness, the

record does not indicate that her problems were nearly as severe as Knight’s.9 

Knight’s record is substantially less good. In her 1997 evaluation, Knight

received a 2.92 in Dependability/Reliability. In 1998 this had fallen to 2.13. In

October 1998, Knight was counseled on her tardiness and told tha t she “ne eds to

come to work on time and have no more occurrences.” 10 Despite this warning,

Knight accumulated 16 occurrences (7 excused absences and 9 tardies) between her

1998 and 1999 evaluations and received a 1.73 on the 1999 evaluations. Knight’s

downward trend continued; between her 1999 and 2000 eva luations she

accumulated 14 occurrences and she received a 1.38 on the 2000 evaluation. 

Nothing in the record indicates that Knight compensated for her absence or tardiness

by working extra hours at the hospital. 

In the light of the entire record, Knight and Arnold are not similarly situated. 

Knight’s documented performance and tardiness problems were much worse than
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Arnold’s in both number and na ture. Knight’s problems did not improve after she

was counseled and warned in writing about them. Because Arnold and Knight are

not similarly situated, that Arnold was not also plac ed on de cision-making leave

creates no inference of discrimination against Knight. Knight has failed to establish

a prima facie case of discrimination. The district court’s grant of summary

judgment is AFFIRMED.

AFFIRMED. 
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POGUE, Judge, dissenting:

In my view, the majority opinion’s discussion addressing the comparability of

Knight and Arnold’s job performance does not draw reasonable inferences in favor of

the plaintiff. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-1

(2000). Drawing reasonable inferences in plaintiff’s favor, on the record here, a

reasonable jury could conclude tha t Ms. Knight and Ms. Arnold are similarly situated.

With regard to their documented histories of problems with coworkers, the

majority appea rs to agre e tha t Ms. Knight and Ms. Arnold are similarly situated. The

majority claims that the differences in their performance histories and records of

absenteeism and tardiness would preclude a reasonable fact-finder from finding them

comparable on the basis of their cumulative employment record as a whole. 

With rega rd to their performance histories, however, because Arnold was given

an Agreement for Performance Improvement for the blood refrigerator incident (a

written disciplinary action), a reasonable jury could conclude that the employer

considered that infraction to be more serious than the incidents documented in Knight’s

record (mere oral reprimands).

With regard to absenteeism and tardiness, the record indicates that both Knight

and Arnold were given an Agreement for Performance Improvement, a formal (written)

disciplinary action be cause of their absente eism or tardiness. Accordingly, drawing
14

reasonable inferences in favor of the plaintiff, Knight and Arnold appear similarly

situated in this regard.

Accordingly, with regard to Knight’s and Arnold’s respective employment

records taken as a whole, the employer’s own progressive disciplinary system provides

a basis to infer that Knight and Arnold are similarly situated. The fact that Arnold had

twice previously been given an Agreement for Performance Improvement, two formal

(written) disciplinary actions whereas the incident that led to Knight’s termination was

only her seco nd formal (written) discipline provides a rea sonable basis for a jury to

conclude that Arnold’s historical record was at least as negative as Knight’s.

Consequently, a reasonable jury could conclude that the defendant’s action with regard

to Knight’s problem with her coworkers (requiring an Agreement for Performance

Improvement and imposing a suspension or decision-making day) was not even-handed

when compared to its response to Arnold’s similar problems. Moreover, Knight’s 2000

evaluation, issued contemporaneously with the disciplinary action at issue here, rated

her performance overall as 3.39, more than “fully meets expectations.” Therefore, a

reasonable jury could find the employe r’s explana tion for its actions lacks credibility.