Theresa Phillips v. Legacy Cabinet
Citation87 F.4th 1313
Date Filed2023-12-08
Docket22-10057
Cited37 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10057
____________________
THERESA PHILLIPS,
PlaintiďŹ-Appellant,
versus
LEGACY CABINETS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:20-cv-01548-CLM
____________________
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2 Opinion of the Court 22-10057
Before WILSON and JILL PRYOR, Circuit Judges and COVINGTON,*
District Judge.
JILL PRYOR, Circuit Judge:
Theresa Phillips worked for over six years at a factory run
by Legacy Cabinets. Her manager, Derrick OâNeal, fired her in
2019. Phillips is a white woman; OâNeal is a Black man. OâNeal says
he fired Phillips for insubordination after she repeatedly com-
plained about having to work over the weekend and then publicly
insulted him on the factory floor. Phillips says OâNeal fired her be-
cause she is white. She denies insulting OâNeal and claims that two
Black coworkers who complained about their schedule alongside
her were not punished at all.
After her termination, Phillips sued Legacy, alleging em-
ployment discrimination under Title VII and 42 U.S.C. § 1981. The
district court granted Legacyâs motion for summary judgment,
concluding that Phillips had presented no evidence of discrimina-
tory intent. We disagree.
Viewing the evidence in the light most favorable to Phillips,
as we must at this stage, we hold that a reasonable jury could find
that Legacy discriminated against Phillips when it punished her
more harshly than her Black coworkers for similar conduct. And so
we reverse the district courtâs grant of summary judgment to Leg-
acy and remand for further proceedings.
â Honorable Virginia M. Covington, United States District Judge for the Mid-
dle District of Florida, sitting by designation.
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22-10057 Opinion of the Court 3
I. BACKGROUND
A. Phillipsâs Termination
Legacy Cabinets, LLC, is a cabinet manufacturer based in
Eastaboga, Alabama. Theresa Phillips, a white woman, began
working for Legacy in 2013, first as a temporary worker and even-
tually as a full-time employee. Phillips worked on a âhanging line,â
inspecting and repairing cabinets overhead with about 18 other em-
ployees.
Phillips and her coworkers on the hanging line were super-
vised by a line leader and an operations manager, who oversaw
other departments as well. When she was terminated, Phillipsâs
line leader was Shayne Hanna, a white man, and her operations
manager was Derrick OâNeal, a Black man. Around the time
OâNeal took over as operations manager, Legacy was busy enough
that employees âstarted working longer hours and longer shifts,â
sometimes putting in â12 to 14 hours Monday through Sunday.â
Doc. 15-1 at 16. 1 By the time Phillips was fired, this schedule was
beginning to take its toll on employee morale.
One Friday, OâNeal gathered his team for their daily âhud-
dleâ and informed them that they would have to work the next
dayâwith the promise that they would have Sunday off.
1 âDoc.â numbers refer to the district courtâs docket entries.
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4 Opinion of the Court 22-10057
Predictably, Phillips and her coworkers were unhappy about the
news, and many expressed frustration that they were working so
much.
The next day, several members of the team were late or ab-
sent. Derrick Stockdale, one of Phillipsâs Black coworkers, arrived
two hours late, coming in only after someone called to remind him.
Even Hanna, the line leader, failed to show up on time. Because of
these absences, the team fell further behind schedule, and the plant
managers decided that the employees would need to work on Sun-
day after all. Once again, OâNeal gathered the employees for their
daily huddle and relayed the news.
Phillips and Legacy agree that most team members were un-
happy and there was âmoaning and groaningâ all around. Doc. 15-
2 at 21. They also agree that Phillips, Stockdale, and Tavia Craigâ
another of Phillipsâs Black coworkersâall spoke up during the hud-
dle. But Phillips and Legacy disagree about the way in which Phil-
lips addressed OâNeal in that moment, and they dispute what hap-
pened between Phillips and OâNeal later.
1. Phillipsâs Version of the Facts
According to Phillips, when OâNeal announced that employ-
ees would have to work on Sunday, Stockdale and Craig âwere
loud,â saying that âthey didnât want to workâ and âcussingâ with
words like âhell and damn and the âFâ word.â Doc. 15-1 at 23. Phil-
lips nodded her head in agreement with Stockdale and Craig but
did not speak up until OâNeal specifically asked, âHave you got
something you want to say?â Id. Phillips responded that âit was
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22-10057 Opinion of the Court 5
unfair that [she and her coworkers] had been working these late
hours and long weeksâ and pleaded that they were âall tired.â Id.
At this point, OâNeal âstarted blowing upâ and âgetting really an-
gry.â Id. He told Phillips that Alabama was a right-to-work state
and he could set whatever hours he wanted. OâNeal then sent eve-
ryone home except Phillips, whom he asked to stay back and go to
his office with Hanna.
Once in his office, OâNeal suspended Phillips until Monday.
During their conversation, OâNeal reminded her that he had re-
cently given her a ten-dollar Chick-fil-A gift card â[f]or doing a good
job.â Id. at 16. Phillips replied that the gift card was still in her car
âif he wanted it back,â but OâNeal said that he did not. Id. at 26â27.
Phillips then walked out of the office with OâNeal, while Hanna
walked in the other direction.
As soon as Hanna was gone, OâNeal turned around âreal
quick,â âgot in [Phillipsâs] face,â and, unprovoked, told her she was
fired. Id. at 27. He also said that she should not apply for unemploy-
ment or look for another job in the cabinet industry âbecause he
would make sure [she] didnât get it.â Id. at 25. Then, while Phillips
was âjust standing there,â OâNeal called someone on the radio and
said that Phillips was being âirate.â Id. When Phillips told OâNeal
that this was âstupidâ because she had just been âstanding thereâ
silently, OâNeal falsely relayed on the radio that Phillips had called
him stupid. Id. Phillips eventually gathered her belongings and was
escorted off the premises. Legacy later told Phillips that she had
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6 Opinion of the Court 22-10057
been fired for âinsubordination,â but it would not elaborate fur-
ther. 2
2. Legacyâs Version of the Facts
Legacy presents a different version of events. According to
OâNeal, when he gathered his team for their Saturday huddle and
told them they would need to work on Sunday, â[Phillips] and a
couple more guys[] kept interrupting.â Doc. 15-2 at 21. Unlike Phil-
lips, neither OâNeal nor Hanna recalled any cursing from Stockdale
or Craig. When OâNeal asked for the chirping to stop, âeveryone
except [Phillips] kind of backed off and let [him] finish talking.â Id.
But Phillips continued to interrupt, âsaying itâs against the law, that
you canât schedule us to work on Sunday.â Id. Once he was done,
OâNeal dismissed everyone except Phillips. He then asked her and
Hanna to come to his office because he was âshocked at [Phillipsâs]
attitude.â Id. at 22.
As the trio walked to his office, OâNeal said, Phillips contin-
ued to insist that he could not schedule her to work on Sunday.
OâNeal responded that he could âschedule it and you can choose
to come or not.â Id. at 22. Phillips then âwent on telling [OâNeal]
that this place [is] going to crap . . . because of [him]â and that he
âdidnât know what [he] was doing.â Id. Noting that she was
2 The Legacy employee handbook states that conduct such as: (1) âdeliber-
ately interfering with operationsâ; (2) âinsubordination or refusal to carry out
any instruction from a supervisorâ; or (3) using âprofanityâ could result in dis-
ciplinary action âup to and including immediate termination of employment.â
Doc. 15-1 at 52â53.
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22-10057 Opinion of the Court 7
âdisgruntled,â OâNeal suggested that Phillips go home until Mon-
dayâthough he assured her that she was not fired. Id.
After they left OâNealâs office, Phillips continued to be dis-
ruptive, stopping other employees to complain and calling OâNeal
âstupidâ several times. OâNeal warned Phillips that if she called him
stupid again he would have to fire her. Undeterred, she responded,
â[y]ou are stupid, and this place is going to shit.â Id. at 23. As prom-
ised, OâNeal fired Phillips on the spot and escorted her out of the
building. Later, during his deposition, OâNeal explained that he
fired Phillips â[f]or being insubordinate and disrespectful out on the
floorâ and for resorting to âname callingâ because he âdidnât want
that to spread through the floor . . . the way she was being disre-
spectful to a manager.â Id. at 30.
B. Phillipsâs Lawsuit Against Legacy
Phillips sued Legacy, alleging that she was fired because of
her race in violation of Title VII and 42 U.S.C. § 1981. Her com-
plaint alleged that race was the but-for cause of her firingâknown
as a âsingle-motiveâ or âpretextâ theory of discriminationâor, in
the alternative, that it was âat least a motivating factor in the ter-
mination decisionââknown as a âmixed-motiveâ theory.
After discovery, Legacy moved for summary judgment, ar-
guing that Phillips could not satisfy the three-part burden-shifting
framework for single-motive discrimination cases articulated in
McDonnell Douglas. 3 Legacy argued that Phillips could not establish
3 McDonnell Douglas v. Green, 411 U.S. 792 (1973).
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8 Opinion of the Court 22-10057
a prima facie case of discrimination because she could not point to
a valid non-white comparator whom OâNeal treated more favora-
bly than her. Even if Phillips could establish a prima facie case, Leg-
acy argued, summary judgment was appropriate because the com-
pany had proffered a legitimate, nondiscriminatory reason for fir-
ing herâinsubordinationâand she had no evidence showing that
this reason was pretextual. 4
Phillips urged the court to deny Legacyâs motion and allow
her to proceed to trial. In support of her prima facie case, Phillips
identified at least 14 non-white employees whom she said Legacy
had treated more favorably than her. Specifically, she pointed to
Stockdale and Craig, both of whom made disruptive comments at
the Saturday huddle without punishment. She also presented disci-
plinary records from Legacy showing 12 instances in which other
non-white employees engaged in insubordinate conduct but were
not fired. At least three of these employeesâTavia Slater, Kathy
Groce, and Taneesha Williamsâwere supervised by OâNeal. Alt-
hough OâNealâs testimony suggested that Phillips had been more
disruptive than her proposed comparators, Phillipsâs own testi-
mony contradicted that account. Given these competing
4 Legacyâs motion for summary judgment did not explicitly address Phillipsâs
mixed-motive theory. Prodded sua sponte by the district court, Legacy filed
supplemental briefing on this issue, arguing that (1) Phillips could not rely on
a mixed-motive theory because she would not concede that Legacy had any
legitimate reasons for firing her, and (2) even if Phillips could assert a mixed-
motive theory, she had no evidence that race was âa motivating factorâ in her
termination.
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22-10057 Opinion of the Court 9
narratives, Phillips argued, a reasonable jury could find that she
was punished more harshly than her non-white comparators for
similar conduct; therefore, she satisfied the first step of the McDon-
nell Douglas framework.
Next, Phillips argued that her own testimonyâs incon-
sistency with Legacyâs proffered reason for her termination sup-
ported an inference of pretext. According to Phillips, this evidence
of pretext, combined with her comparator evidence, was enough
for a reasonable jury to find that race was the real âbut forâ cause
of her termination. Alternatively, she argued that her comparator
evidence supported an inference that race was at least âa motivat-
ing factorâ in OâNealâs decision to fire her, precluding summary
judgment on her Title VII claim under a mixed-motive theory of
discrimination.
C. The District Courtâs Decision
The district court granted Legacyâs motion for summary
judgment. To start, the court agreed with Phillips that she had es-
tablished a prima facie case of discrimination, satisfying the first
step of the McDonnell Douglas framework. Rejecting Legacyâs argu-
ment to the contrary, the court found that Phillips had identified at
least two valid, non-white comparators, concluding that âa reason-
able juror could find . . . that Phillips was similarly situated to
Stockdale and [Craig] during the Saturday group meeting or to
other minority employees that OâNeal called to his office but did
not fire.â Doc. 29 at 12. Because these non-white comparators were
treated more favorably than Phillips for (by her telling) similar
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10 Opinion of the Court 22-10057
conduct, the court determined that Phillips had made out her
prima facie case. But the court also concluded that Legacy had suf-
ficiently rebutted any presumption of discrimination by presenting
a valid, nondiscriminatory reason for Phillipsâs terminationâher
insubordinate comments to OâNeal both during the huddle and af-
ter they met in his office.
The final blow to Phillipsâs case came at the pretext stage, in
which the court considered whether Phillips could establish that
Legacyâs proffered reason for her termination was merely a pretext
for racial discrimination. The court concluded that, even accepting
Phillipsâs testimony and viewing the facts in the light most favora-
ble to her, Phillips had established only âpretext of something.â Id.
at 13. In the courtâs view, âPhillips ha[d] no evidence from her in-
cident that would prove that OâNeal fired her because she was
white.â Id. at 14. Although disciplinary records showed that OâNeal
had failed to fire Black employees for insubordinate conduct, the
court said, these records, âviewed as a whole, tend[ed] to disprove
Phillipsâ[s] claim,â because at least two white employees were
spared as well. Id. The court made no mention at this stage of
Stockdale or Craig, the two comparators closest to Phillips.
The district court also granted Legacyâs motion with respect
to Phillipsâs mixed-motive theory. According to the court, âPhillips
fail[ed] to prove a mixed-motive case for the same reasonsâ that she
failed to establish pretextâthere was simply no âevidence that
would allow a reasonable juror to find that race played a role in
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22-10057 Opinion of the Court 11
OâNealâs decision to fire Phillips.â Id. at 17. The district court thus
entered summary judgment for Legacy.
This is Phillipsâs appeal.
II. STANDARD OF REVIEW
âWe review a district courtâs grant of summary judgment de
novo, viewing all evidence and drawing all reasonable inferences in
favor of the non-moving party.â State Farm Mut. Auto. Ins. Co. v.
Spangler, 64 F.4th 1173, 1178 (11th Cir. 2023). Summary judgment
is appropriate when the evidence, viewed in that light, presents no
genuine dispute of material fact and compels judgment as a matter
of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322â23 (1986). A factual dispute is genuine if it has a real basis in
the record and the evidence is such that a reasonable jury could
rule in favor of the nonmovant. Ellis v. England, 432 F.3d 1321,
1325â26 (11th Cir. 2005). âCredibility determinations, the weighing
of evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.â Strickland v. Norfolk S. Ry.
Co., 692 F.3d 1151, 1154 (11th Cir. 2012).
III. DISCUSSION
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer âto discriminate against any individual with re-
spect to [her] compensation, terms, conditions, or privileges of em-
ployment, because of such individualâs race.â 42 U.S.C. § 2000eâ
2(a)(1). Similarly, â[s]ection 1981 prohibits intentional race discrim-
ination in the making and enforcement of public and private con-
tracts, including employment contracts.â Ferrill v. Parker Grp., Inc.,
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12 Opinion of the Court 22-10057
168 F.3d 468, 472(11th Cir. 1999); see42 U.S.C. § 1981
. Discrimina-
tion claims brought under Title VII may be pursued under a âsin-
gle-motiveâ theoryâin which the employee alleges that unlawful
bias was âthe true reasonâ for an adverse employment action,
Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir.
2016)âor a âmixed-motiveâ theoryâin which she alleges that bias
was simply âa motivating factorâ for the adverse action, âeven
though other factors also motivated the practice,â 42 U.S.C.
§ 2000eâ2(m) (emphasis added). Section 1981 claims brought
alongside Title VII claims may be pursued under the single-motive
theory only. See Comcast Corp. v. Natâl Assân of Afr. Am.-Owned Media,
140 S. Ct. 1009, 1019 (2020). 5
Phillips argues that she should be allowed to proceed to trial
on both theories. For the reasons stated below, we agree.
A. Phillipsâs Single-Motive Theory
Where, as here, an employee bases her single-motive dis-
crimination claim on circumstantial evidence, we generally apply
the McDonnell Douglas burden-shifting framework. McCann v. Till-
man, 526 F.3d 1370, 1373 (11th Cir. 2008). Under this framework,
the employee must first establish a prima facie case of discrimina-
tion by showing that (1) âshe belong[ed] to a protected class,â (2)
âshe was subjected to an adverse employment action,â (3) âshe was
5 Single-motive discrimination claims brought under Title VII and § 1981 âare
subject to the same standards of proof and employ the same analytical frame-
work.â Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009).
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22-10057 Opinion of the Court 13
qualified to perform the job in question,â and (4) her âemployer
treated similarly situated employees outside her class more favora-
bly.â Lewis v. City of Union City, 918 F.3d 1213, 1220â21 (11th Cir.
2019) (en banc) (internal quotation marks omitted). If the em-
ployee establishes a prima facie case, the burden shifts to the em-
ployer to provide a legitimate, nondiscriminatory reason for its ac-
tions. Id. at 1221. If the employer articulates such a reason, the em-
ployee must then show that the employer's stated reason was
merely a pretext for unlawful discrimination. Id.
Here, the district court determined that Phillips had made
out a prima facie case and could show that Legacyâs proffered rea-
son was âpretext of something.â Doc. 29 at 13. But the court con-
cluded that Phillips had failed to show that unlawful discrimination
was the true reason for her termination.
Phillips argues that this conclusion was flawed. Her evi-
dence of pretext, combined with the comparator evidence consid-
ered by the court at the prima facie stage, should have been enough
to send her case to the jury, she says. Legacy disagrees. It argues
that the district court erred in the first place by concluding that
Phillips had made out a prima facie case. And even if she could
make out a prima facie case, Legacy says, she failed to show that its
explanation for her firing was pretextual, let alone that it was a pre-
text for racial discrimination.
We begin by addressing Legacyâs contention that Phillips
failed to make out a prima facie case. We then consider whether
she has presented sufficient evidence from which a reasonable jury
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14 Opinion of the Court 22-10057
could determine that Legacyâs proffered explanation for her firing
was a pretext for race discrimination.
1. Phillips Has Made Out a Prima Facie Case of Dis-
crimination.
Legacy does not dispute that Phillips made out the first three
elements of a prima facie case: (1) she was a member of a protected
class, (2) she suffered an adverse employment action, and (3) she
was qualified for her position. The only issue at this stage, then, is
the fourth element, whether Phillips has shown that Legacy
âtreated similarly situated employees outside her class more favor-
ably.â Lewis, 918 F.3d at 1221. We agree with the district court that
Phillips has met this burden. 6
â[A] plaintiff asserting an intentional-discrimination claim
under McDonnell Douglas must demonstrate that she and her prof-
fered comparators were similarly situated in all material respects.â
Id. at 1218 (internal quotation marks omitted). Generally, this
means that a comparator will (1) have engaged in the same basic
conduct as the plaintiff; (2) have been subject to the same employ-
ment policy, guideline, or rule as the plaintiff; (3) have been under
6 An employee may also satisfy the fourth element of her prima facie case by
showing that she was âreplaced by someone outside of [her] protected class.â
Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015).
Here, as the district court found, âPhillips sufficiently established that she was
replaced by a non-white employee.â Doc. 29 at 10 n.2.
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22-10057 Opinion of the Court 15
the jurisdiction of the same supervisor as the plaintiff; and (4) share
the plaintiffâs employment or disciplinary history. Id. at 1227â28.
Phillips identified at least 14 non-white comparators who
worked with her at Legacy, but much of her argument focuses on
just two: Stockdale and Craig. Phillips says that both men were pre-
sent during the Saturday huddle and âstarted fussingâ when OâNeal
mentioned that they would need to work on Sunday, raising their
voices to argue with OâNeal and using words like â[h]ell and damn
and the âFâ wordâ to express their displeasure. Doc. 15-1 at 23. De-
spite this disruptive and disobedient conduct, Phillips says, OâNeal
focused his angerâand disciplinary actionsâon her, even though
she simply âagreed that it was unfair that [they] had been working
these late hours and long weeks.â Id.
We conclude that a reasonable jury could find that Stockdale
and Craig engaged in similar conduct yet were treated differently.
Legacy does not dispute that these men were subject to the same
workplace policies as Phillips, fell under the same supervisor, and
had similar employment histories. Nevertheless, Legacy argues
that Stockdale and Craig are not similarly situated to Phillips be-
cause âneither of them continued to interrupt OâNeal as he was
speaking to the groupâ in the Saturday huddle, and neither of them
made âdisrespectful and insubordinate comments towards OâNealâ
after being taken to his office. Appelleeâs Br. at 29. But this distinc-
tion turns on conduct that Phillips deniesâa dispute of fact that
renders this issue unsuitable for adjudication at the summary judg-
ment stage. See Strickland, 692 F.3d at 1154 (âCredibility
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16 Opinion of the Court 22-10057
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of
a judge.â (internal quotation marks omitted)).
Although it is a closer question, a reasonable jury could also
find that three more of Phillipsâs coworkersâSlater, Groce, and
Williamsâengaged in similar conduct without comparable pun-
ishment. According to Legacyâs own records, OâNeal disciplined
each of these employees for insubordination during their time with
the company. Slater, for example, was verbally reprimanded for
telling OâNeal that âshe [was] going homeâ if he did not turn on a
fan, Doc. 17-4 at 5; Groce was given a written warning for âusing
offensive profanity towards her supervisor,â id. at 12; and Williams
was admonished for repeatedly âverbaliz[ing] negative opinions
about other team members and superv[isors] in group settings,â id.
at 2. Likewise, Legacyâs records reflect that when OâNeal heard
Williams continue to âcommentâ on the issue, he asked her to re-
turn to his office, but she refused. Id. This is evidence from which
a jury could find that, like Phillips, each of these employees en-
gaged in some form of insubordinate conduct. Unlike Phillips,
none of them was fired.
As with Stockdale and Craig, Legacy argues that Slater,
Groce, and Williams are not valid comparators because they did
not âengage[] in the same[] highly unique conduct as Phillipsââ
that is, continuing to argue with and make disrespectful comments
toward OâNeal after being told to stop. Appelleeâs Br. at 30. But,
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22-10057 Opinion of the Court 17
again, this argument presupposes that OâNealâs version of events is
correct, a determination that this Court is not permitted to make.
Because a reasonable jury could decide to credit Phillipsâs
testimony over OâNealâsâand thus find that Phillips was punished
more harshly than her similarly situated non-white coworkersâ
the district court did not err in determining that Phillips had made
out her prima facie case.
2. Phillips Has Presented Evidence of Pretext for Racial
Discrimination.
Phillips does not dispute that Legacy has proffered a legiti-
mate reason for her termination. Indeed, OâNealâs account of Phil-
lipsâs repeated insubordinationâif trueâwould be an understand-
able reason to end her employment. OâNealâs testimony thus was
sufficient to dispel any presumption created by Phillipsâs prima fa-
cie case and shift the burden back to her to demonstrate that this
explanation was simply a pretext for unlawful discrimination. See
Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997).
The district court concluded that Phillips had fallen short: although
a reasonable juror could find that Legacyâs reason was âpretext of
something,â the court said, Phillips had presented no evidence that
it was a pretext for racial discrimination. We disagree.
Once an employer has offered evidence of a legitimate, non-
discriminatory reason for its action, the burden shifts to the plaintiff
to show the asserted reason was pretextual. This burden âmerges
with the ultimate burden of persuading the court that she has been
the victim of intentional discrimination.â Tex. Depât of Comm. Affairs
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18 Opinion of the Court 22-10057
v. Burdine, 450 U.S. 248, 256 (1981). âShe may succeed in this either
directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the
employerâs proffered explanation is unworthy of credence.â Id.
However, â[s]howing only that the employerâs proffered reason is
false does not necessarily entitle a plaintiff to get past summary
judgment.â Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1264 (11th
Cir. 2010). To survive summary judgment, a plaintiff must present
sufficient evidence for a reasonable jury to conclude ânot just that
[the employerâs] proffered reasons for firing her were ill-founded
but that unlawful discrimination was the true reason.â Id. at 1267.
We start by considering whether Phillips has presented suf-
ficient evidence for a reasonable jury to conclude that Legacyâs
proffered reason for firing her was pretextual. We then address the
question at the core of this appeal: whether Phillips can show that
the true reason for her termination was unlawful discrimination.
(a) Phillipsâs Evidence of Pretext
To establish pretext, an employee must âcast sufficient
doubt on the [employerâs] proffered nondiscriminatory reasons to
permit a reasonable factfinder to conclude that [they] were not
what actually motivated its conduct.â Combs, 106 F.3d at 1538 (in-
ternal quotation marks omitted). The employee achieves this by
demonstrating âsuch weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employerâs proffered legiti-
mate reasons for its action that a reasonable factfinder could find
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22-10057 Opinion of the Court 19
them unworthy of credence.â Id. (internal quotation marks omit-
ted).
Viewing the evidence in the light most favorable to Phillips,
we conclude that she can show that Legacyâs proffered reason for
firing her was false. Although OâNeal says that he fired Phillips for
arguing with him during the huddle and then repeatedly calling
him âstupidâ and criticizing his leadership after he suspended her
for the weekend, Phillips denies that any of this happened. Thus, if
a jury chooses to believe Phillips over OâNeal, it will likely con-
clude that Legacyâs proffered explanation is false and that she was
fired for some other reason.
Legacy argues that Phillipsâs âgeneral denialsâ are not
enough to establish pretext. Appelleeâs Br. at 24. âPhillips may dis-
pute some of what she said,â and she may deny being disrespectful
or insubordinate, âbut she cannot demonstrate that OâNealâs rea-
sons to terminate her were false or that OâNealâs subjective re-
sponse to the comments that she made to him was false.â Id. at 34.
Legacy is correct that an employee is ânot allowed to recast
an employerâs proffered nondiscriminatory reasons or substitute
[her] business judgment for that of the employer.â Id. at 32 (quot-
ing Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000)
(en banc)). It is also correct that â[t]he inquiry into pretext centers
on the employerâs beliefsâ about the employeeâs conduct, ânot the
employeeâs beliefsâ about her own actions. Id. at 33 (quoting Alva-
rez, 610 F.3d at 1266); see also Wilson v. B/E Aerospace, Inc.,376 F.3d 1079, 1092
(11th Cir. 2004) (âWhether [an employeeâs] conduct was
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20 Opinion of the Court 22-10057
insubordinate is not an issue for this Court to referee.â), abrogated
on other grounds by Lewis, 918 F.3d at 1218. Phillips could not prevail,
then, by arguing that she did not believe her actions to be insubor-
dinate or that she should not have been fired for her insubordinate
conductâbut that is not what she says. Instead, Phillips insists that
the conduct itself never happened.
Phillips does admit that she and others spoke up during the
Saturday huddle and complained about having to work on Sunday.
But Legacy has never suggested that this conduct alone was the
reason for her termination. Nor could it, given Phillipsâs claim that
Stockdale and Craig were also âfussingâ and âcussingâ at OâNeal
during that time. 7 Doc. 15-1 at 23. Indeed, Legacy argues that Phil-
lips was not fired until after she accompanied OâNeal to his office
and âcontinued to make disrespectful and insubordinate comments
towards OâNeal,â Appelleeâs Br. at 29âcomments that Phillips de-
nies making at all.8 Because the plausibility of Legacyâs proffered
7 To be clear, Legacy is free to argue before a jury that Phillipsâs conduct dur-
ing the huddle was measurably worse than that of Stockdale and Craig and
thus warranted disparate treatment. At the summary judgment stage, how-
ever, this claim conflicts with Phillipsâs own testimony that she spoke up only
after OâNeal asked for her opinion and then said only: âI donât think itâs fair.
Weâre all tired.â Doc. 15-1 at 22.
8 According to Legacy, Phillips âdoes not disputeâ that she made insubordi-
nate comments after being called into OâNealâs office, including saying that âit
was illegal to work on Sundays,â that OâNeal âdid not know how to talk to
people or how to treat people,â and that she would return the Chick-fil-A gift
card OâNeal gave her for being a good worker. Appelleeâs Br. at 34. This
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22-10057 Opinion of the Court 21
reason for firing Phillips depends entirely on disputed issues of fact,
the district court did not err in concluding that a reasonable jury
could find that this reason was pretextual. But the core question
remains: is there sufficient evidence for a jury to find that the real
reason was unlawful discrimination?
(b) Phillipsâs Evidence of Racial Discrimination
âThe critical decision that must be made is whether the
plaintiff has create[d] a triable issue concerning the employerâs dis-
criminatory intent.â Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d
1327, 1336 (11th Cir. 2015) (internal quotation marks omitted). âTi-
tle VII functions only as a bulwark against unlawful discrimination;
it does not substitute the business judgment of federal courts for
any other nondiscriminatory reason.â Id. at 1330. As this court re-
peatedly has recognized, âemployers are free to fire their employ-
ees for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discrim-
inatory reason.â Id. at 1338 (internal quotation marks omitted). It
is not enough, in other words, for Phillips to prove that Legacy is
lying about the true reason for her termination; to escape summary
argument falls flat. To start, Phillips does appear to dispute telling OâNeal that
it was illegal to work on Sundays, and she does not admit telling OâNeal that
he did not know how to treat people. And even though Phillips agrees that she
offered to give back the Chick-fil-A gift card, OâNeal never suggested that this
statement influenced his decision to fire her.
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22 Opinion of the Court 22-10057
judgment, she must produce sufficient evidence for a reasonable
jury to find that the true reason was discrimination.
The district court concluded that Phillips had not met that
burden. We think she has. Put simply, Phillipsâs evidence of pre-
text, combined with her testimony describing how OâNeal treated
her more harshly than her similarly situated non-white compara-
tors, is sufficient for a reasonable jury to find discriminatory intent.
This is especially true with respect to Stockdale and Craig, two
non-white employees who allegedly engaged in similar conduct as
Phillips at a similar time and yet went unpunished.
Legacy argues that this evidence is not enough. âEven if the
Court were to . . . consider [Stockdale and Craig],â Legacy says,
âthat plus the limited record that Phillips presented of other disci-
plinary records is not sufficient to establish evidence of discrimina-
tion.â Appelleeâs Br. at 14. Legacyâs argument is twofold. First, it
says, Phillips was treated differently for different conduct, under-
mining any claim of discrimination. â[W]hat happened to Phillips
is not comparable to [Stockdale or Craig],â Legacy argues, because
neither of them engaged in the same disruptive and insubordinate
conduct as Phillipsâduring the huddle or after. Id. at 36. This ar-
gument, rejected at every stage of our analysis so far, is no more
convincing here. It again ignores the fact that, by Phillipsâs telling,
she did not engage in the conduct OâNeal alleged. Whether this
testimony is credible is a matter for the jury to decide. Should a
jury believe it, however, OâNealâs decision to single out Phillips for
punishment while ignoring similarâor worseâconduct from
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22-10057 Opinion of the Court 23
Stockdale and Craig provides at least some evidence of discrimina-
tory intent. The same may be said of OâNealâs more forgiving treat-
ment of Slater, Groce, and WilliamsâPhillipsâs other non-white
comparators. 9
Second, Legacy argues that âa prima facie case does not, on
its own, establish pretext.â Id. at 40. Quoting this Courtâs decision
in Flowers, Legacy insists that âmaking a prima facie case and
merely contradicting the [defendant]âs proffered legitimate, non-
discriminatory reasonâ is no longer enough to escape summary
judgment. Id. (quoting 803 F.3d at 1339). Now, an employee must
âproduce additional evidence suggesting discrimination after con-
tradicting their employerâs stated reasons.â Id.(quoting803 F.3d at 1339
) (emphasis added by Legacy).
9 The district court made no mention of Stockdale or Craig at the pretext stage
of its analysis. Addressing Phillipsâs other comparators, however, the court
concluded that âthe disciplinary records, when viewed as a whole, tend to dis-
prove Phillipsâ[s] claim of racial biasâ because OâNeal had not fired two other
white employees for insubordinate conduct at other times in his tenure. Doc.
29 at 14 (emphasis in original) (citations omitted). But Title VII does not âgive
an employer license to discriminate against some employees on the basis of
race or sex merely because he favorably treats other members of the employ-
eesâ group.â Connecticut v. Teal, 457 U.S. 440, 455 (1982). The ultimate question
is not whether OâNeal discriminated against all white subordinates, but
whether he discriminated against Phillips because she was white. Evidence
that OâNeal failed to fire other white employees for insubordination, âalt-
hough relevantâ to the question of his intent, âis certainly not dispositive,â and
is better left to the jury to weigh against Phillipsâs own comparator evidence.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).
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24 Opinion of the Court 22-10057
It is true that, in Flowers, this Court determined that the em-
ployeeâs evidence of pretext, combined with his prima facie case,
was not enough to support a finding of discriminationâbut the key
component of that decision was the employeeâs lack of valid com-
parators. 803 F.3d at 1338â40. In that case, we explicitly rejected
the employeeâs proposed comparator evidence, noting that â[t]he
obvious differences between Flowersâs circumstances and those of
his purported comparators are hardly the stuff of an apples-to-ap-
ples comparison.â Id. at 1340. 10 Lacking valid comparators, this
Court noted that â[t]he only evidence that Flowers offers that even
touches on his race is the fact that he became the first black head
football coach in Troup County since 1973.â Id. at 1338.
Here, the mere fact that Phillips can establish her prima facie
case and show âpretext of somethingâ is insufficient to escape sum-
mary judgment. But the specific evidence she used to get to that
pointâincluding evidence of potential comparatorsâis enough
that a reasonable jury who believes Phillipsâs testimony may find
discriminatory intent. See Wilson, 376 F.3d at 1088 (â[E]vidence of
pretext may include . . . the same evidence offered initially to es-
tablish the prima facie case.â); see also Ross v. Rhodes Furniture, Inc.,
146 F.3d 1286, 1291 (11th Cir. 1998) (recognizing that âthe evidence
10 The district court in Flowers determined that the employee had established
his prima facie case âwithout evidence that similarly situated comparators
were treated differentlyâ because he was replaced by someone of a different
race. Flowers v. Troup Cnty, Ga., Sch. Dist., 1 F. Supp. 3d 1363, 1366 (N.D. Ga.
2014); see also id. at 1371 n.8. Neither party challenged this determination on
appeal. Flowers, 803 F.3d at 1333.
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22-10057 Opinion of the Court 25
in a prima facie case might be strong enough to also show pretextâ).
It is certainly true that âa plaintiffâs prima facie case, combined with
sufficient evidence to find that the employerâs asserted justification
is false,â will not always be enough to support a finding of unlawful
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 148 (2000). 11 But, depending on the circumstances, that com-
bination may be enough to send the issue to a jury. Id. The district
court thus erred in granting Legacyâs motion for summary judg-
ment on Phillipsâs single-motive theory of discrimination.
B. Phillipsâs Mixed-Motive Theory
Unlike Title VII claims brought under a single-motive the-
ory of discriminationâwhich ârequire a showing that bias was the
true reason for [an] adverse actionââclaims brought under a
mixed-motive theory require the employee to show only âthat ille-
gal bias . . . âwas a motivating factor forâ an adverse employment
action, âeven though other factors also motivatedâ the action.â
Quigg, 814 F.3d at 1235 (quoting 42 U.S.C. § 2000e-2(m)). This re-
quirement âcan be established with either direct or circumstantial
evidence.â Id. But, because the mixed-motive theory does not de-
pend on âproof of a single, âtrue reasonâ for an adverse action,â an
11 âFor instance, an employer would be entitled to [summary judgment] if the
record conclusively revealed some other, nondiscriminatory reason for the
employerâs decision, or if the plaintiff created only a weak issue of fact as to
whether the employerâs reason was untrue and there was abundant and un-
controverted independent evidence that no discrimination had occurred.â
Reeves, 530 U.S. at 148. Neither of these circumstances is present here.
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26 Opinion of the Court 22-10057
employee relying on circumstantial evidence is not required to sat-
isfy the McDonnell Douglas burden-shifting framework. Id. at 1237.
Instead, she can survive summary judgment simply by producing
âevidence sufficient to convince a jury that: (1) the defendant took
an adverse employment action against the plaintiff and; (2) [a pro-
tected characteristic] was a motivating factor for the defendantâs
adverse employment action.â Id. at 1232â33.
Here, the district court concluded that Phillips could not
proceed under her mixed-motive theory âfor the same reasonsâ
that she âcould not prove pretext under McDonnell Douglasâi.e.,
[she] fail[ed] to present evidence that would allow a reasonable ju-
ror to find that race played a role in OâNealâs decision to fire [her].â
Doc. 29 at 17. 12 Unsurprisingly, Legacy agrees. According to Leg-
acy, â[t]he only possible evidence of discrimination that Phillips
cites in support of her argument that race was a motivating factor
[is] OâNealâs allegedly more favorable treatment of other black
12 Phillips argues that Legacy failed to move for summary judgment on her
mixed-motive theory of relief and that the district court erred by sua sponte
directing Legacy to brief the issue. But Legacy acknowledged Phillipsâs mixed-
motive theory in its motion for summary judgment and argued that Phillips
had failed to provide evidence of any discriminatory intent, an argument ap-
plicable to either theory. The district court then allowed the parties to submit
additional briefing on Phillipsâs mixed-motive theory. â[S]o long as the party
against whom judgment will be entered is given sufficient advance notice and
has been afforded an adequate opportunity to demonstrate why summary
judgment should not be granted, then granting summary judgment sua sponte
is entirely appropriate.â Burton v. City of Belle Glade, 178 F.3d 1175, 1204 (11th
Cir. 1999).
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22-10057 Opinion of the Court 27
employees.â Appelleeâs Br. at 48. This comparator evidence, Leg-
acy argues, âfalls short of [implying] that Phillipsâs race was a mo-
tivating factorâ in her termination. Id. But we have already held
that Phillipsâs comparator evidence is sufficient for her to proceed
to trial on her arguably more burdensome single-motive theory.
Therefore, the district court erred in granting Legacyâs motion for
summary judgment on Phillipsâs mixed-motive theory of discrimi-
nation.13
13 In addition to its arguments on the merits, Legacy insists that Phillips can-
not proceed under a mixed-motive theory because she âhas always disputed
that she engaged in behavior that warranted her termination and has consist-
ently asserted that the reason for her termination was pretextual and false.â
Appelleeâs Br. at 44. According to Legacy, in other words, Phillips cannot claim
that racial discrimination was âa motivating factorâ in her termination without
first conceding that it was not the âsingle, true reasonâ for it. To support its
position, Legacy cites a series of unpublished decisions for the proposition that
âa single-motive case is not transformed into a mixed-motive case merely be-
cause the employer raises a legitimate, non-discriminatory reason for its ac-
tions.â Id.at 45 (quoting Smith v. Vestavia Hills Bd. of Educ.,791 F. Appâx 127
,
131 (11th Cir. 2019) (unpublished). Unpublished decisions, of course, are not
binding. Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir.
2018). Further, unlike the plaintiffs in Legacyâs cited cases, Phillips has pleaded
and argued a mixed-motive theory from the start. Compare Doc. 1 Âś 35
(â[E]ven if [Legacy] had legitimate reasons for terminating her, [Phillipsâs]
white race was at least a motivating factor in the adverse employment actions
[Legacy] took against her.â), with Fonte v. Lee Memâl Health Sys., No. 20-13240,
2021 WL 5368096, at *4 (11th Cir. Nov. 18, 2021) (unpublished) (â[The em-
ployee] did not allege a mixed-motive claim before the district court.â), and
Stevenson v. City of Sunrise, No. 20-12530, 2021 WL 4806722, at *7 (11th Cir.
Oct. 15, 2021) (unpublished) (concluding that the employee failed to plead a
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28 Opinion of the Court 22-10057
IV. CONCLUSION
For the foregoing reasons, we reverse the district courtâs
grant of summary judgment and remand to the district court for
further proceedings.
REVERSED and REMANDED.
mixed-motive claim), and Smith, 791 F. Appâx at 131 (â[The employee] did not
plead or prove a mixed-motive case.â). We are thus unpersuaded that Phillips
cannot proceed under a mixed-motive theory of discrimination.