[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________

No. 22

- 12200

Non

- Argument Calendar

____________________

GEORGETTE SHAW,

Plaintiff

- Appellant,

versus UNITED STATES POSTAL SERVICE, UNITED STATES POSTMASTER GENERAL,

Defendants

- Appellees.

____________________ Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 1:20

- cv

- 00183

- JRH

- BKE USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 1 of 72 Opinion of the Court 22

- 12200

____________________

Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: Georgette Shaw appeals from the district court’s grant of summary judgment in favor of her employer, the United States Postal Service (“USPS”) , on her employment action alleging a claim of rac e ‐ based disparate treatment under Title VII of the Civil Rights Act of 1964 ( “ Title VII ” ), 42 U.S.C. § 2000e

‐ 2(a) . She challenges many of the court’s factual conclusions and argues that these conclusions caused the court to err further in its analyses. S he argues that the court erred in determining that her proffered comparators were not similarly situated. She also argues that the court erred in finding that she did not meet her burden to show that USPS’s proffered reason was pretext. Finally, she argu es that, even if her comparators were dissimilar, the district court erred in failing to find a convincing mosaic of evidence showing discrimination.

I.

We review de novo a district court’s order granting summary judgment. Bowen v. Manheim Remarketing, In c.

, 882 F.3d 1358, 1362 (11th Cir. 2018). Summary judgment may be granted only if “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). “If that standard is met, the burde n shifts to the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial.” Shaw v. City of Selma , 884 F.3d 1093, USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 2 of 722

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1098 (11th Cir. 2018) (quotation marks omitted). “[M]ere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247

- 48 (1986) (emphasis in original).

“A material fact is one that might affect the outcome of thesuit under the governing law. A material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Furcron v. Mail Centers Plus, LLC , 843 F.3d 1295, 1303 (11th Cir. 2016) (quotation marks and citation omitted). “All reasonable inferences arising from the undisputed facts shouldbe made in favor of the nonmovant, but an inference based on speculation and conjecture is not reasonable.” Ave. CLO Fund, Ltd. v. Bank of Am., N.A. , 723 F.3d 1287, 1294 (11th Cir. 2013) (quotation marks omitted). “Because summary judgment may only begranted where there is no genuine issue of material fact, any purported ‘factual findings’ of the trial court cannot be ‘factual findings’ as to disputed issues of fact, but rather are conclusions as a matter of law that no genuine issue of material fact exists.” Jones v. Am. Gen. Life & Acc. Ins. Co. , 370 F.3d 1065, 1069 n.1 (11th Cir. 2004) (alterations adopted).

II. USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 3 of 74 Opinion of the Court 22

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To defeat a summary judgment motion on a Title VII disparate treatment claim, a plaintiff “must present sufficient facts to permit a jury to rule in her favor.” Lewis v. City of Union City,
Ga. , 918 F.3d 1213, 1220 (11th Cir. 2019) ( en banc ). “One way [to] do so is by satisfying the burden

‐ shifting framework set out in McDonnell Douglas

. 1 ” Id. Under the McDonnell Douglas framework, when the plaintiff seeks to establish her prima facie case of intentional discrimination by comparing her situation to a ppropriate comparators

— as does Shaw in this case

— the plaintiff must show “(1) that she belongs to a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified to perform the job in question, and (4) that her emp loyertreated similarly situated employees outside her class more favorably.” Id. at 1220

‐ 21 (quotation marks omitted). As to the fourth element, the plaintiff “must show that she and her comparators are similarly situated in all material respects.” Id. a t 1226 (quotation marks omitted). Ordinarily, a similarly situated comparator: (1) “will have engaged in the same basic conduct (or misconduct) as the plaintiff”; (2) “will have been subject to the same employment policy, guideline, or rule as the plainti ff”; (3) “will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff”; and (4) “will share the plaintiff’s employment or disciplinary history.” Id. at
1227

- 28. However, “precisely what sort of simil arity

1 McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 4 of 722

- 12200 Opinion of the Court 5

th[is]

. . . standard entails will have to be worked out on a

case ‐ by

‐ case basis, in the context of individual circumstances. ” Id.at 1227. Where an employer took adverse action against the plaintiff but not against another employee outside her cla ss, “[t]he relevant inquiry is not whether the employees hold the same job titles,but whether the employer subjected them to different employment policies.” Id. at 1227, 1231 (quotation marks omitted) (holding that comparators were not similarly situated to the plaintiff because they were subject to different personnel policies); Lathem v. Dep't of Child. & Youth Servs. , 172 F.3d 786, 793 (11th Cir. 1999). In this case, although there are considerable differences in the situations of Phillips and Tichgela ar, we assume arguendo (but expressly do not decide) that there might be genuine issues of material fact as to whether Phillips and/or Tichgelaar are similarly situated in all material respects. Thus, we assume arguendo that Shaw has established her prima facie case. However, as discussed below, we nevertheless affirm the judgment of the district court on the basis of its alternative holding

— i.e. that the USPS proffered alegitimate safety reason for the challenged actions and Shaw ultimately failed to es tablish pretext.

III.

Under the McDonnell Douglas framework, once the plaintiff successfully establishes a prima facie case of intentional discrimination, the burden shifts to the employer to rebut the presumption USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 5 of 76 Opinion of the Court 22

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of discrimination by proffering a legitimate, non

- discriminatory reason for its employment decision against the plaintiff. McDonnell Douglas , 411 U.S. at 802. If the employer does so, the burden shifts back to the plaintiff to show that the employer’s stated reason was in fact pretext. Id. at 804. “A reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimin ation was the real reason.” Brooks, 446 F.3d at 1163 (quotation marks omitted) (emphasis in original). As noted above, the USPS adduced evidence of legitimate safety reasons for denying Shaw’s request for an accommodation to work with a medical boot with open toes. The USPS policy on which the decision was based is reasonable. After a careful review of the briefs and relevant parts of the summary judgment record,we conclude that Shaw has failed to create a genuine issue of material fact on the pretext i ssue. There is no evidence

— absolutely

zero

— of any racial motivation on the part of either Blendowski or Steele, the only two persons who possibly could have influenced the challenged decision. There is simply no evidence suggesting that the decision was based on, or influenced by, racial discrimination rather than safety reasons. Similarly, there is no me rit in Shaw’s argument that a “convincing mosaic” of circumstantial evidence raises a reasonable inference that the challenged decision was based on raci al discrimination. As noted above, there is simply no evidence at all to support that theory. Furthermore, Shaw did not raise a convincing USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 6 of 722

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mosaic argument in the district court, and the argument is thus forfeited. For the foregoing reasons, the judgment of district court is

AFFIRMED. USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 7 of 7