PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 97-6076

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D. C. Docket No. CV 95-N-2798-S

PATRICIA A. JONES,

Plaintiff-Appellant,

versus

BESSEMER CARRAWAY MEDICAL CENTER,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Alabama

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(March 27, 1998)

Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.
2

EDMONDSON, Circuit Judge:

Patricia Jones (“Plaintiff”) brought suit against Bessemer

Carraway Medical Center (“Defendant”) under Title VII alleging

that she was discriminatorily discharged. The district court

granted Defendant’s motion for judgment as a matter of law

after determining that Plaintiff failed to establish a prima facie

case of discrimination. We affirm the judgment.

Background

Plaintiff -- a black woman -- was hired by Defendant in 1987

as a Licensed Practical Nurse on its medical-surgical floor.

Plaintiff was responsible for general patient care. During the

pertinent period, she worked on the 3:00 to 11:00 p.m. shift and

was required to be at work by 2:30 p.m. to take “report” (receive

patient information). Plaintiff was also required to wear a white
 1

No one disputes that street clothes were not permitted to be worn

during work on Plaintiff’s floor. Other areas of the medical center

had different requirements and policies about these issues. So,

discipline for conduct in those areas is not necessarily relevant to the

situation at issue here.

 2Defendant had an attendance policy so that employees could be

terminated if they incurred ten “occurrences” of absenteeism within

a rolling 12-month period. An absence from work counted as one

occurrence; a tardy counted as one-half an occurrence. But, the

attendance policy permitted Plaintiff to arrive by 2:37 p.m. without

being considered “tardy.”

3

uniform or a “scrub suit” (“scrubs”) while performing her

nursing duties.1

One day in 1995, Plaintiff clocked into work at 2:32 p.m.

while wearing a red jogging suit. She stated that she clocked

in out-of-uniform to avoid being late and receiving another

tardy under Defendant’s attendance policy.2

 She admitted that

one more tardy would have been grounds for her dismissal

given her poor attendance record. 

After clocking into work, Plaintiff went to take report

wearing her red jogging suit. She then asked the Head Nurse,
 3

Plaintiff contests that Smith gave her this instruction.

4

Charlene Smith (“Smith”), who is a white woman, whether she

could leave during her lunch break to go home and to lock her

front door. Smith denied this request and claims that she,

seeing Plaintiff was out-of-uniform, told Plaintiff to put on

scrubs immediately.3

 But, instead of going to put on scrubs,

Plaintiff went to ask another supervisor, Shirley Rollan

(“Rollan”), for permission to leave during the shift. Plaintiff

says she intended to change into scrubs after she talked with

Rollan.

After Smith’s discussion with Plaintiff, Smith went

to the Assistant Administrator of Nursing, Joyce Carlin

(“Carlin”) -- a white woman, who is Smith’s supervisor -- to

report the incident. Smith told Carlin that Plaintiff came to work

out-of-uniform and that she did not change into scrubs when

instructed. Carlin then had Plaintiff -- who, after talking with
 4

Plaintiff contests that Carlin gave her this instruction.

5

Rollan, was still wearing her red jogging suit -- come to her

office to discuss the situation. 

Plaintiff told Carlin that she had clocked into work out-ofuniform. Plaintiff also repeatedly requested that she be able to

leave during her shift to lock up her house; Carlin denied the

requests because of staffing concerns. Carlin also claims that

she instructed Plaintiff to change into scrubs but that Plaintiff

would not do it.4

 At that point, Carlin asked Plaintiff to clock

out and to leave work -- around 2:50. Carlin did not investigate

the situation further. 

The personnel committee met the following week to

discuss the incident and, after discussing it with Carlin,

decided to terminate Plaintiff. Two reasons were given for

Plaintiff’s dismissal: (1) failure to the follow the instructions of
 5

While Carlin claims that Plaintiff did not follow her instruction (in

addition to Smith’s instruction), disobedience to Carlin was not given

as a reason for Plaintiff’s dismissal.

6

Smith, which constituted insubordination;5 and (2) being

unprepared for work.

Plaintiff filed suit against Defendant claiming she was

discriminatorily discharged on the basis of race in violation of

Title VII. At trial, Plaintiff sought to introduce evidence that

nonminority employees were treated more favorably for similar

conduct and that Smith’s acts were motivated by racial animus.

The district court, however, excluded the evidence. And, at the

close of Plaintiff’s case, the district court concluded that

Plaintiff had failed to establish a prima facie case of

discrimination under Title VII and granted Defendant’s motion

for judgment as a matter of law. Plaintiff appeals.

Discussion
7

This court reviews a district court*s grant of judgment as

a matter of law de novo and applies the same standards utilized

by the district court. Richardson v. Leeds Police Dep’t, 71 F.3d

801, 805 (11th Cir. 1995). A judgment as a matter of law should

be granted if, upon considering all the evidence in the light

most favorable to the nonmoving party, “reasonable people in

the exercise of impartial judgment could not arrive at a contrary

[decision].” Isenbergh v. Knight-Ridder Newspaper Sales, Inc.,

97 F.3d 436, 439 (11th Cir. 1996). “The court may not weigh the

evidence or decide the credibility of witnesses . . . . The

nonmoving party must provide more than a mere scintilla of

evidence to survive a motion for judgment as a matter of law;

‘there must be a substantial conflict in evidence to support a

jury question.’” Id. (quoting Carter v. City of Miami, 870 F.2d

578, 581 (11th Cir. 1989)) (internal citations omitted).
8

I. Prima Facie Case of Discrimination under Title VII

Plaintiff contends that the district court erred by excluding

evidence and by concluding that she failed to establish a prima

facie case of discrimination. Title VII of the Civil Rights Act of

1964 makes it unlawful for an employer “to discriminate against

any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). A plaintiff may establish a prima facie case of

discrimination by circumstantial evidence of discriminatory intent,

see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973); Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997).

In this case, Plaintiff attempted to prove discrimination with

circumstantial evidence, using the familiar McDonnell

Douglas/Burdine three-step burden shifting framework. Under

this framework, a plaintiff carries the initial “burden of
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establishing a prima facie case of racial discrimination.”

McDonnell Douglas, 411 U.S. at 802. Then, if a prima facie case is

shown, the defendant must “articulate some legitimate,

nondiscriminatory reason for the [adverse employment action].”

Id. If this is done, then the plaintiff may attempt to show that the

proffered reason was merely a pretext for the defendant’s acts.

See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). “The ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.” Id. The issue in this case

is whether the district court properly concluded that Plaintiff did

not establish her prima facie case.

Plaintiff in this case tried to show a prima facie case of a

discriminatory discharge by proving these things: (1) the plaintiff

belongs to a racial minority; (2) she was subjected to adverse job

action; (3) her employer treated similarly situated employees of

other races more favorably; and (4) she was qualified to do the
 6

On the prima facie case, Plaintiff has called our attention to these

words in Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989):

[W]e hold that, in cases involving alleged racial bias in the

application of discipline for violation of work rules, the plaintiff,

in addition to being a member of a protected class, must show

either (a) that he did not violate the work rule, or (b) that he

engaged in misconduct similar to that of a person outside the

protected class, and that the disciplinary measures enforced

against him were more severe than those enforced against the

other persons who engaged in similar misconduct.

Jones, 874 F.2d at 1540.

Considering the facts in Jones, our impression is that words

about “did not violate the work rule” are unnecessary to the decision

in Jones and are dicta; but we will discuss them. The pertinent

words in Jones demand not two, but three, elements: (1) the plaintiff

is a member of a protected class; (2) the plaintiff has engaged --

either (a) disputedly or (b) admittedly -- in misconduct similar to

persons outside the protected class; and (3) that similarly situated,

nonminority employees (that is, persons outside the protected class)

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job. See Holifield, 115 F.3d at 1562; see also McDonnell Douglas,

411 U.S. at 802. “Demonstrating a prima facie case is not

onerous; it requires only that the plaintiff establish facts adequate

to permit an inference of discrimination.” Holifield, 115 F.3d at

1562 (citations omitted). The chief question on appeal is whether

Plaintiff has satisfied the third element: the like-to-like issue.6
received more favorable treatment.

We stress that, under the Jones formulation, no plaintiff can

make out a prima facie case by showing just that she belongs to a

protected class and that she did not violate her employer’s work rule.

The plaintiff must also point to someone similarly situated (but

outside the protected class) who disputed a violation of the rule and

who was, in fact, treated better.

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A. Similarly Situated Employees

Plaintiff first contends that the district court erred by

excluding evidence of similarly situated, nonminority employees

who were treated more favorably than she was. Evidentiary

rulings by the district court are reviewed for abuse of discretion.

See Walker v. NationsBank, 53 F.3d 1548, 1554 (11th Cir. 1995).

Evidence of similarly situated employees must be used to

support Plaintiff’s prima facie case. This aspect of Plaintiff’s case

is satisfied if: 

[T]he plaintiff [shows] that [she] and the employees are

similarly situated in all relevant respects. . . . [cites

omitted]. In determining whether employees are

similarly situated for purposes of establishing a prima

facie case, 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. 
12

Holifield, 115 F.3d at 1562. The most important factors “‘in the

disciplinary context . . . are the nature of the offenses committed

and the nature of the punishments imposed.’” Jones v. Gerwens,

874 F.2d 1534, 1539-40 (11th Cir. 1989) (quoting Moore v. City of

Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985)); see Holifield, 115

F.3d at 1562; see also Wilmington v. J.I. Case Co., 793 F.2d 909,

916 (8th Cir. 1986); Nix v. WLCY Radio/Rahall Communications,

738 F.2d 1181, 1185 (11th Cir. 1984). If Plaintiff fails to identify

similarly situated, nonminority employees who were treated more

favorably, her case must fail because the burden is on her to

establish her prima facie case. See McDonnell Douglas, 411 U.S.

at 802; Jones, 874 F.2d at 1541. Here, Plaintiff has failed to satisfy

that burden.

Plaintiff first offers evidence that Smith and Beth Nettles

(“Nettles”) -- white women -- requested days off and, after their

requests were denied, took the days off nonetheless. Plaintiff

asserts that this behavior constitutes insubordination for which
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they were not terminated. The record, however, indicates that

incidents of this kind were not treated or disciplined by Defendant

as insubordination but were handled as “occurrences” under and

violations of Defendant’s attendance policy. Plaintiff stresses that

Carlin testified that Carlin considered the pertinent conduct --

taking a day off after being denied permission to take the day off --

to be a degree of insubordination. But, Carlin also made it clear

that this conduct happened all the time and that Defendant

consistently treated these incidents as violations of the

attendance policy and gave the employee an “occurrence” under

that policy. No evidence indicates that Defendant ever treated this

kind of violation as insubordination.

We have written that “Title VII does not take away an

employer’s right to interpret its rules as it chooses, and to make

determinations as it sees fit under those rules.” Nix, 738 F.2d at

1187. Here, Defendant was entitled to conclude that taking a day

off after a request for the day off is denied is not insubordination
 7

We also note that Smith’s and Nettles’s day-off violations were

several years distant from Plaintiff’s acts; and, at the time of their

incidents (1988 and 1985, respectively), they were under supervisors

different from Plaintiff’s supervisor. Such a difference may be

sufficient to prevent them from being considered “similarly situated”

with Plaintiff. See Jones, 874 F.2d at 1541 (“Courts have held that

disciplinary measures undertaken by different supervisors may not

be comparable for purposes of Title VII analysis.”); Cooper v. City of

North Olmstead, 795 F.2d 1265, 1271 (6th Cir. 1986) (“Although a

change in managers is not a defense to claims of race or sex

discrimination, it can suggest a basis other than race or sex for the

difference in treatment received by two employees.”). Different

supervisors may have different management styles that -- while not

determinative -- could account for the disparate disciplinary

treatment that employees experience. See Tate v. Weyerhaeuser Co.,

723 F.2d 598, 605-06 (8th Cir. 1983) (stating that evidence that one

manager may be more lenient than another may explain the

differential treatment that employees receive on a basis other than

race). Plaintiff, however, cites us to no evidence sufficient to

compare the respective management styles of Smith’s and Nettles’s

supervisors with that of Jones’s supervisor.

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under its rules, but instead, is an attendance violation. Nothing is

wrong with this practice as long as the practice is followed in a

nondiscriminatory manner (and no evidence shows discriminatory

application -- whites and blacks treated differently -- of the

practice). Thus, Plaintiff’s use of Smith and Nettles as

comparators is unwarranted.7
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Plaintiff also points to evidence of medication errors by

Smith, Nettles, and Beverly Clark (“Clark”) -- all white women --

that did not result in dismissal. She claims that these are

incidents of similarly situated employees because, like

insubordination, Defendant classifies medication errors as Group

A violations, that is, violations that could result in termination. 

The record indicates that medication errors are not always,

in fact, Group A violations. Instead, Plaintiff has only shown that

the errors could be considered Group A violations depending on

the medication at issue. As a result, Plaintiff’s sweeping

classification is unfounded. Also, despite Plaintiff’s contentions,

it is insufficient to characterize conduct as “similar” for Title VII

analysis simply because it may result in the same or similar

punishment. As we wrote in Jones, one of the most important

factors in determining similarity is the “nature of the offenses

committed.” Jones, 874 F.2d at 1539; see also Holifield, 115 F.3d

at 1562. And, medication errors, in fact, simply involve too many
 8

For example, medication errors may include: (1) giving the wrong

medication altogether; (2) giving the wrong amount of medication; (3)

giving medication at the wrong time; or (4) not giving medication at

all. Also, medication errors may involve issues of professional

judgment, which are not generally relevant in incidents of

insubordination. In addition, that these incidents may have occurred

at different times and under different supervisors lessens their

comparability. See Jones, 874 F.2d at 1541.

If Defendant had fired Plaintiff for medication errors, then we

would be more willing -- despite these variables -- to permit evidence

of other employees’ medication errors because the nature of the

offenses would be more similar. But, that set of facts is not the case

here; Plaintiff was not dismissed for medication errors. 

 9Plaintiff also claims that Clark came to work while wearing street

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variables that preclude their use as comparators with incidents of

insubordination.8

 In the context of this case, Plaintiff’s argument

is based on a level of generality that is too high for use in defining

the concept of “similar.” We cannot endorse comparisons that are

this ill-defined. 

Plaintiff also claims that Clark was a similarly situated

employee because she frequently was unprepared for work -- she

would have curlers in her hair and put makeup on during report --

and had a pretty poor tardiness record.9

 This claim, however,
clothes. But, employees -- including Plaintiff -- were permitted to

come to this workplace in street clothes as long as they changed into

scrubs before the shift began. Here, Plaintiff provides no evidence

that Clark -- unlike Plaintiff -- was “clocked in” while in street clothes,

much less that she declined to comply speedily with a supervisor’s

direction to change into uniform. As a result, evidence that Clark

came to work in street clothes is not sufficient to make her a

comparator for Plaintiff.

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ignores that Plaintiff was not terminated only because she was

unprepared; instead, she was terminated for being unprepared

and insubordinate, in the light of an already deficient employment

record. No evidence shows that Clark was insubordinate or was

accused of being insubordinate in conjunction with her

unpreparedness. Plaintiff’s multiple instances of misconduct on

the same day may simply have been “the straw that broke the

camel’s back.” Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317,

322 (5th Cir. 1981). Again, Plaintiff cites us to no evidence that

Smith, Nettles, or Clark was ever in a similar situation; thus, they

are not proper comparators. P l a i n t i f f h a s f a i l e d t o

demonstrate that the other employees -- Smith, Nettles, and Clark
 10Plaintiff specifically contends that Smith said: (1) “You black

girls make me sick, sometimes I feel like just hitting you in the head”;

(2) “You black girls get away with everything”; and (3) “You black

girls make me sick.” Plaintiff -- correctly -- never argues that the

statements are direct evidence of discrimination for her dismissal.

Plaintiff’s case is one based on circumstantial evidence.

No evidence shows that Smith had failed, in the past, to report

to Carlin (or to another supervisor) employee misconduct that was

truly similar to Plaintiff’s conduct.

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-- were similarly situated for purposes of Title VII analysis. The

district court did not err by excluding the evidence and by

concluding, as a matter of law, that Plaintiff failed to meet her

burden of establishing a prima facie case.

B. Statements by Smith

Plaintiff also argues that the district court erred by excluding

racial statements allegedly made by Smith;10 Plaintiff cites Jones,

874 F.2d at 1540; and Elrod v. Sears Roebuck & Co., 939 F.2d 1466,

1469 n.2 (11th Cir. 1991). But even if we assume that the district

court was mistaken to exclude this evidence, we nonetheless
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conclude that the statements -- even if considered -- do not

establish the missing element of Plaintiff’s prima facie case of

discrimination.

 For Plaintiff’s prima facie case of disparate treatment under

Title VII, she must show -- as a threshold matter under the

circumstantial evidence framework -- that nonminority, similarly

situated employees were treated more favorably: an improper

effect. See Holifield, 115 F.3d at 1562. It is this showing -- and not

the demonstration of racial animus alone -- that addresses the

fundamental issue in a Title VII disparate treatment case:

“‘whether the defendant intentionally discriminated against the

plaintiff.’” Nix, 738 F.2d at 1184 (quoting United States Postal Serv.

Bd. of Governors v. Aikens, 103 S.Ct. 1478, 1481-82 (1983))

(emphasis added). 

Alleged racial animus of a supervisor does not alleviate the

need to satisfy the elements of a prima facie case, although

statements showing some racial animus may be significant
 11We also note that Plaintiff cannot avoid this result simply by

disputing whether Smith actually instructed her to change into

scrubs. A dispute over the reasons for Plaintiff’s termination is

important only to the extent that it might demonstrate that the

reasons stated by the employer were pretextual. See Russell v.

Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (“Pretext . . . means a

lie, specifically a phony reason for some action.”). But, because we

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evidence of pretext once a plaintiff has set out the prima facie

case. See Smith v. Horner, 839 F.2d 1530, 1536-37 (11th Cir. 1988)

(under circumstantial evidence framework, statements may be

used to show pretext); see also E.E.O.C. v. Our Lady of the

Resurrection Medical Ctr., 77 F.3d 145, 149 (7th Cir. 1996); Woody

v. St. Clair County Comm’n, 885 F.2d 1557, 1560 (11th Cir. 1989);

McAdoo v. Toll, 615 F.Supp. 1309, 1314 (D. Md. 1985). 

Whatever Smith’s racial attitudes may be, Plaintiff has failed

to present sufficient evidence that nonminority, similarly situated

employees were treated more favorably by her employer than she

was treated; so, Plaintiff did not establish a prima facie case of

discrimination under Title VII. The district court’s grant of

judgment as a matter of law is affirmed.11
conclude that Plaintiff “failed to present a prima facie case of

discrimination, [we] need not examine [Defendant’s] articulated

reasons for discharging [her], nor determine whether [those] reasons

were merely a pretext for discrimination . . . .” Hawkins v. Ceco

Corp., 883 F.2d 977, 985 (11th Cir. 1989). By the way, Plaintiff fails to

assert -- or to present evidence -- that the personnel committee did

not, in fact, believe that she had done the pertinent acts.

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AFFIRMED.