Melissa Smith v. Emory Health Inc.
CourtCourt of Appeals for the Eleventh Circuit
Date FiledNovember 12, 2026
Docket25-13093
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-13093
Non-Argument Calendar
____________________
MELISSA SMITH,
Plaintiff-Appellant,
versus
EMORY HEALTH INC.,
d.b.a. Emory University School of Medicine,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:23-cv-04314-TWT
____________________
Before GRANT, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Melissa Smith, M.D., appeals the summary judgment in fa-
vor of her former employer, Emory Health, Inc., on her retaliatory-
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2 Opinion of the Court 25-13093
hostile-work-environment claim brought under the Americans
with Disabilities Act. We affirm.
I.
Beginning in July 2014, Emory University School of Medi-
cine employed Smith as a non-tenured assistant professor of psy-
chiatry and behavioral sciences. She was assigned to work full time
as an attending physician on the psychiatric consulting service at
Grady Memorial Hospital. She was the only attending physician
that worked full time on that service; two other Emory faculty phy-
sicians and a physician employed by Morehouse Medical School
also provided part-time coverage.
Emory employed Smith on an annual contract, which was
renewed at the beginning of the academic year in 2015–2019. Each
year after the first, she received a written evaluation that rated her
performance in six categories: scholarship, teaching, clinical/inter-
nal service, professional/external service, citizenship, and overall
performance. Smith generally met or exceeded expectations in
teaching and clinical service and performed at or below expected
levels in scholarship, external service, and citizenship. Her overall
performance was rated at the “commendable” or “meets expecta-
tions” level every year except for the 2016–2017 academic year,
when her overall performance was rated “accomplished”/exceeds
expectations.
In the spring of 2019, Smith tore a ligament in her knee that
required two surgeries that year and a third, non-invasive proce-
dure under anesthesia in the spring of 2020. Emory provided paid
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25-13093 Opinion of the Court 3
medical leave for three months after the first surgery and an addi-
tional six weeks after the second surgery. When she returned to
work after those procedures, she was able to perform her essential
job duties without limitations, but she required breaks to ice her
knee and time off for medical and physical therapy appointments.
Smith’s supervisor, Dr. Ann Schwartz, allowed her to come in late
or leave early several times a week for her appointments, on the
condition that she communicate with her supervisor and members
of the consulting service team about her arrival and departure
times.
But according to Schwartz, Smith did not communicate well
with members of her team about her absences. Schwartz, the other
consulting service physicians, the physician’s assistant assigned to
the service, and residents all complained that they were unable to
find Smith at times when they expected her to be present and avail-
able. Some also complained about her style of communication,
which had been an issue in past years. For her part, Smith thought
that her coworkers were treating her unfairly, as though she were
exaggerating her injury, and that she was required to account for
her whereabouts more strictly than others.
Schwartz and Dr. Grayson Norquist, Emory’s chief of the
behavioral health service at Grady, discussed these issues with
Smith in person at her annual career conference in November 2019,
and the two documented a need for improvement in communica-
tion with team members in her annual performance review. In the
written performance review for the 2018–2019 academic year,
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Smith received a “needs development” rating in scholarship, exter-
nal service, and citizenship, and an overall rating of “commenda-
ble.”
Smith was upset about the performance-review ratings and
believed the lower ratings and ongoing tension with her colleagues
were retaliation for her medical leave and request for accommoda-
tions. She contacted Emory’s Office of Accessibility Services and
requested that her accommodations be formalized in writing, and
she notified the legal department and Office of Equity and Inclu-
sion about the suspected retaliation. She also filed a complaint with
the U.S. Equal Employment Opportunity Commission, alleging
discrimination and retaliation in violation of the Americans with
Disabilities Act.
Meanwhile, Smith’s relationships with her coworkers and
supervisors did not improve. Her coworkers continued to com-
plain about her communication style and unexplained absences,
spurring Schwartz and Norquist to send her corrective emails.
Norquist also informed Smith that she needed to improve her
productivity—the data he reviewed showed that she was the least
productive member of her team in terms of the number of patient
consults completed on days when she was not on medical leave.
In January 2020, Schwartz and Norquist met with Smith
again to discuss her response to the performance review and the
ongoing conflicts with her colleagues. At that meeting, they in-
formed her that she would be placed on a performance improve-
ment plan (PIP). The PIP noted that Smith had been counseled in
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25-13093 Opinion of the Court 5
2015 and 2016 about professional communication issues and unex-
cused absences—including being dismissive of others, not collabo-
rating with staff and other attendings, being late or missing ap-
pointments without apparent reason, and failing to communicate
with team members. It stated that similar performance issues had
resurfaced in 2019 and had not improved after the issues were
brought to her attention in her performance review. It also stated
that after several unexplained absences and late appearances, Nor-
quist had pulled her parking entry and exit records and discovered
that Smith had averaged less than four hours per day at Emory in
December 2019 and January 2020, despite having an eight-hour
workday and providing notice of only a few expected absences. Fi-
nally, the PIP raised ethical concerns—noting that entry-and-exit
records showed that Smith had not been at Emory on a day when
she told her supervisor she was in her office, and that her CV con-
tained misleading information about her scholarly contributions.
The PIP warned Smith that if she did not improve her perfor-
mance, she could be disciplined, terminated, or have her contract
non-renewed.
Also in January 2020, Emory received notice that Smith had
requested medical credentials at West Georgia Medical Center,
which was not associated with Emory. Norquist contacted Smith
and asked for an explanation, reminding her that Emory faculty
were not allowed to practice at non-Emory facilities. Smith told
him she had not requested credentials at West Georgia and sug-
gested that the facility must have confused her with a different pro-
vider because of her common name.
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Emory later received reports from several sources that
Smith had been credentialed at another non-Emory hospital sys-
tem, Tanner Health; was on staff at several of Tanner’s facilities;
and was working for Tanner on weekends. Joshua Barwick, an as-
sociate dean of faculty affairs at Emory, contacted Smith and asked
her if she had been practicing medicine outside Emory or had re-
quested credentials to do so. He reminded her that Emory faculty
were not allowed to practice medicine for compensation at any
non-Emory facility. Smith told him that she had not requested cre-
dentials to practice outside Emory and had not been moonlighting
anywhere—even though she was, in fact, working for at least two
non-Emory facilities at the time and had been doing so for years.
After that phone call, Barwick emailed Smith and instructed
her to execute written authorizations for Tanner’s Medical Direc-
tor to speak with an associate dean at Emory, and for Tanner
Health to release a copy of her credentialing file to Emory. Tan-
ner’s Medical Director subsequently wrote a letter addressed “To
Whom It May Concern,” stating that Smith “does not work in any
capacity” for Tanner. And Smith copied Ira Horowitz, Emory’s
Executive Associate Dean of Faculty and Clinical Affairs, on an
email to Tanner’s Medical Director, telling him that Horowitz
would like to speak with him about Smith’s “Tanner affiliation.”
But Smith did not execute authorizations as Barwick had in-
structed.
Without the credentialing documents from Tanner or an ex-
plicit authorization for Tanner’s Medical Director to discuss
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25-13093 Opinion of the Court 7
Smith’s credentialing history, Barwick was unable to verify the re-
ports that she was (or had been) moonlighting at Tanner. But he
believed that Smith had lied to him when she denied working out-
side Emory or applying for credentials to do so, and he concluded
that she was not cooperating with his investigation. He consulted
with Horowitz and the two agreed that Smith should be sus-
pended. On April 19, 2020, Horowitz sent Smith a letter notifying
her that she was being placed on unpaid administrative leave, ef-
fective immediately, because of her “failure to cooperate as repeat-
edly requested by the School of Medicine in its review of concerns
that you have engaged in unauthorized moonlighting outside the
Emory system.” Horowitz informed her that she would not be re-
turned to active paid status unless and until she complied with Bar-
wick’s instructions to authorize Tanner Health to release her cre-
dentialing files to Emory, and that her continued noncompliance
could result in non-renewal or termination of her contract.
Before and during her suspension, Barwick emailed Smith
several times asking for the requested authorization. She did not
respond to his emails.
Barwick recommended that Emory decline to renew
Smith’s employment contract based on her failure to cooperate
with his investigation. The recommendation was approved by
Horowitz, the chair of the psychiatry department, and the dean of
Emory’s medical school. The department chair informed Smith in
late May 2020 that her contract would not be renewed.
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Smith sued Emory under the Americans with Disabilities
Act, alleging, among other things, that Emory retaliated against her
for formally requesting accommodations and filing discrimination
complaints internally and with the EEOC. The “retaliatory hostile
environment” allegedly created by Emory included giving her a
negative performance evaluation in 2019, placing her on a perfor-
mance improvement plan, suspending her without pay, and not re-
newing her employment contract.
The district court granted Emory’s motion for summary
judgment on Smith’s ADA claims. It concluded that Smith’s 2019
performance evaluation and PIP did not amount to actionable re-
taliation, and that Smith could not establish that her suspension
and non-renewal were causally related to her protected activity.
Smith now appeals the summary judgment.
II.
We review a district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to the non-
movant. Anthony v. Georgia, 69 F.4th 796, 804 (11th Cir. 2023).
Summary judgment is appropriate if “there is no genuine dispute
as to any material fact” and the moving party “is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute
exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). But if the nonmoving party “fails to make
a showing sufficient to establish the existence of an element essen-
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25-13093 Opinion of the Court 9
tial to that party’s case, and on which that party will bear the bur-
den of proof at trial,” then the moving party is entitled to summary
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).
III.
The ADA prohibits retaliation against an individual because
she made a charge under its provisions or “opposed any act or prac-
tice made unlawful” by the Act. 42 U.S.C. § 12203(a). This provi-
sion of the ADA tracks language used in the retaliation provision
of Title VII of the Civil Rights Act, so we evaluate ADA retaliation
claims and Title VII retaliation claims in the same way. Ring v. Boca
Ciega Yacht Club Inc., 4 F.4th 1149, 1162–63 (11th Cir. 2021); see 42
U.S.C. § 2000e-3(a) (Title VII anti-retaliation provision).
To make out a prima facie case on an ADA retaliation claim,
a plaintiff must establish that (1) she engaged in statutorily pro-
tected activity; (2) she suffered a “materially adverse” action; and
(3) the adverse action was causally related to the protected activity.
Ring, 4 F.4th at 1163; Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67–68 (2006) (evaluating a Title VII retaliation claim).
The “adverse action” element requires proof of an act that pro-
duced a significant injury or harm, so that it “well might have dis-
suaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington Northern, 548 U.S. at 68; see Monaghan
v. Worldpay US, Inc., 955 F.3d 855, 861 (11th Cir. 2020). And the
“third element requires a showing of but-for causation”—that is,
that the challenged adverse action would not have happened but
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10 Opinion of the Court 25-13093
for her protected activity. Frazier-White v. Gee, 818 F.3d 1249, 1258
(11th Cir. 2016).
We use the same standards to assess a “retaliatory hostile
work environment” claim, which alleges “that the employer cre-
ated or tolerated a hostile work environment in retaliation for an
employee’s participation in protected activity.” Buckley v. Sec’y of
Army, 97 F.4th 784, 799 (11th Cir. 2024) (assessing a retaliatory hos-
tile work environment claim under Title VII’s federal-sector provi-
sion). The plaintiff still must show that the employer’s com-
plained-of actions were “materially adverse,” and she must estab-
lish the required causal connection between her protected activity
and the hostile environment. Id.; Terrell v. Sec’y, Dep’t of Veterans
Affs., 98 F.4th 1343, 1357 (11th Cir. 2024).
On appeal, Smith argues that the district court erred in de-
termining that (1) her 2019 performance evaluation and the Janu-
ary 2020 performance improvement plan were not materially ad-
verse actions, separately or collectively; and (2) she failed to estab-
lish that her requests for accommodations and complaints of dis-
crimination caused her suspension and the non-renewal of her em-
ployment contract. We agree with the district court.
A.
An employer’s allegedly retaliatory act is not “materially ad-
verse” unless it causes sufficient harm to deter a victim of discrim-
ination from complaining about her treatment—ordinary work-
place tribulations and annoyances are not actionable. Burlington,
548 U.S. at 67–68. In general, a negative performance evaluation
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25-13093 Opinion of the Court 11
will not qualify. See Johnson v. Miami-Dade Cnty., 948 F.3d 1318,
1326–27 (11th Cir. 2020); cf. Crawford v. Carroll, 529 F.3d 961, 974
(11th Cir. 2008) (negative performance review that rendered em-
ployee ineligible for a raise was materially adverse).
Smith argues that she reasonably perceived the 2019 evalua-
tion and the PIP collectively as a “threat to her status at Emory,”
but she has not presented any evidence to that effect beyond her
own speculation. Norquist and Barwick testified that Emory does
not consider annual performance evaluations or PIPs in making de-
cisions about compensation or promotions, though they acknowl-
edged that some of the decisionmakers involved would be aware
of and have access to those documents in the employee’s personnel
file. Smith’s 2019 performance evaluation was only marginally
lower than her evaluations in past years, and she received the same
overall rating that she had received in three out of four past evalu-
ations. As for the PIP, Norquist testified that he did not view a PIP
as a negative event, but a detailed plan to help the faculty member
improve. He noted that he had placed other physicians on PIPs,
and that at least one physician who had been on a PIP had later
been promoted to unit director. And Barwick testified that Emory
does not view PIPs as a disciplinary measure; they are a means of
helping faculty members meet expectations. Under the circum-
stances, Smith’s 2019 performance evaluation and 2020 PIP would
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not have dissuaded a reasonable worker from making complaints
or requesting accommodations under the ADA.
B.
It is undisputed, however, that Smith’s April 2020 suspen-
sion without pay and the non-renewal of her employment contract
in late May 2020 were materially adverse events. We therefore
turn to the district court’s conclusion that Smith failed to present
evidence from which a reasonable jury could conclude that her dis-
crimination complaints and requests for accommodations were a
but-for cause of the suspension and non-renewal. See Frazier-White,
818 F.3d at 1258.
On appeal, Smith argues that a reasonable jury could con-
clude that Emory’s stated reason for her suspension and the non-
renewal of her contract—that she lied to Barwick and failed to co-
operate with his investigation into whether she was practicing
medicine at non-Emory facilities—was pretext. To establish pre-
text at the summary judgment stage, a plaintiff must demonstrate
“such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of
credence.” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121,
1136 (11th Cir. 2020) (en banc) (quotation omitted). And an em-
ployer’s reason “is not pretext for retaliation unless it is shown both
that the reason was false, and that retaliation was the real reason.”
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Id. (alteration adopted, emphasis in the original, quotation omit-
ted).
Smith has not met that burden here. It is undisputed that
Norquist and Barwick had good reason to believe that Smith was
working for non-Emory medical facilities during her employment
with Emory, and that she lied to them when they asked her about
it. During Barwick’s investigation, Smith denied working at or re-
questing credentials for any non-Emory facility, and when con-
fronted with reports that she had been credentialed at several Tan-
ner Health facilities, she claimed that the credentialing must some-
how have been done without her permission. Then, despite re-
peated requests by Barwick, Smith refused to provide written au-
thorization for Tanner Health to release her credentialing file to
Emory.
As proof of her cooperation with the investigation, Smith
points to the April 2020 letter from Tanner’s medical director stat-
ing that she was not (then) working for Tanner, and Smith’s email
to the medical director stating that Horowitz wished to speak with
him about her affiliation with Tanner. These details do not under-
mine Barwick’s testimony that Smith obstructed his investigation
by lying to him about her moonlighting activities and refusing to
authorize Tanner to release her credentialing files. The letter from
Tanner’s medical director did not address reports that Smith had
obtained credentials at several Tanner facilities and had been seen
working at a Tanner facility earlier in the year. And Smith’s email
to Tanner’s medical director did not mention her credentialing file
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or authorize the medical director to speak with Horowitz about
her credentialing at Tanner.
Moreover, Smith has not cited to any evidence indicating
that retaliation was the real reason for her suspension or the non-
renewal of her contract. This omission is fatal to her pretext argu-
ment, leaving her without evidence from which a reasonable jury
could find that Emory intentionally retaliated against her because
of her protected activity. See Gogel, 967 F.3d at 1136; Ismael v.
Roundtree, 161 F.4th 752, 762 (11th Cir. 2025).
IV.
Smith failed to establish that her 2019 performance evalua-
tion and 2020 performance improvement plan, together or sepa-
rately, were actions that “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” See
Monaghan, 955 F.3d at 857 (quotation omitted). She also failed to
present evidence from which a reasonable jury could conclude that
she would not have been suspended or had her contract non-re-
newed but for her complaints of discrimination and requests for
reasonable accommodations. See Frazier-White, 818 F.3d at 1258.
Because she did not make a sufficient showing on at least one es-
sential element of her case, we AFFIRM the district court’s sum-
mary judgment in Emory’s favor. See Celotex Corp., 477 U.S. at 322–
23.
AFFIRMED.