PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

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No. 97-6076 FILED U.S. COURT OF APPEALS -------------------------------------------- ELEVENTH CIRCUIT District Court No. CV 95-N-2798-S 08/24/98 THOMAS K. KAHN PATRICIA A. JONES, CLERK

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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(August 24, 1998)

ON PETITION FOR REHEARING

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

PER CURIAM: This case is before us on plaintiff-appellant’s motion for

rehearing. The motion is denied, except that we strike

altogether part B. of our opinion of 27 March 1998 (137 F.3d

21306). We replace the stricken portion of our opinion with a

new part B., conclusion, and appendix:

B. Statements by Smith

Plaintiff also argues the district court erred by excluding

racial statements allegedly made by Smith;10 Plaintiff cites

10 Plaintiff specifically contends that Smith has 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– admits that none of the statements is direct evidence of discrimination for her dismissal.

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

939 F.2d 1466, 1469 n.2 (11th Cir. 1991).

We will assume that the district court was mistaken to

exclude this evidence. And, we also assume for the sake of

argument that a plaintiff might be able to establish, by

circumstantial evidence, a prima facie case even in the

absence of showing that a similarly situated, nonminority

employee has not been dismissed. But even with these

assumptions, the statements by Smith are not enough in this

case to establish the prima facie case: one still cannot infer it

is more likely than not that her termination was based on an

illegal discriminatory criterion.

For discrimination cases, the distinction between direct

and circumstantial evidence is important to preserve.11

Direct evidence is evidence which, if believed, proves the 11

existence of the fact in issue without inference or presumption. So, direct evidence of discrimination is powerful evidence capable of making out a prima facie case essentially by itself. This court has marked severe limits for 3 Smith’s statements do not amount to direct evidence of

discriminatory conduct. Plaintiff agrees. And as

circumstantial evidence, the statements are not enough to

establish a prima facie case. Although the district court held

a hearing before excluding the statements in advance of the

trial, the record as it was developed tells us little about the

statements, their timing, context and so on. But we do know

the kind of language to be treated as direct evidence of discrimination. See, e.g., Evans v. McClain of Georgia, Inc., 131 F.3d 957, 962 (11th Cir. 1997); Burrell v. Board of Trustees of Georgia Military College, 125 F.3d 1390, 1393-94 n.7 (11th Cir. 1997); Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082 (11th Cir. 1990). To give great weight -- for example, to say a few isolated words “make all the difference” -- to language that is, at best, only circumstantial evidence blurs the important distinction between circumstantial evidence and direct evidence for prima facie cases. Blurring this distinction adds hurtful uncertainty to the law. Language not amounting to direct evidence, but showing some racial animus, may be significant 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); 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 Comm., 885 F.2d 1557, 1560 (11th Cir. 1989). 4 they were not associated with the events of the day leading

to Plaintiff’s discharge.12

In addition, nothing in the record shows Smith, on the

pertinent day, did more than orally report an incident to

Carlin. No evidence shows that Smith had failed, in the past,

to report to Carlin (or to another supervisor) employee

misconduct that was similar to Plaintiff’s conduct. Nothing

shows that Smith coaxed Carlin to take disciplinary action of

any kind, much less recommended that Carlin refer Plaintiff

to the personnel committee to be discharged.

No evidence suggests Carlin had reason to believe that

Smith was an unreliable reporter. But Carlin did not just rely

on Smith.

Carlin intervened. She met personally with Plaintiff on

the pertinent day. Carlin with her own eyes saw Plaintiff still

The most favorable (from Plaintiff’s viewpoint) parts of 12

what was offered by Plaintiff about the statements are included in the Appendix to this opinion. 5 out of uniform. Carlin had her own conversation with Plaintiff

that was entirely consistent (including Plaintiff’s

disobedience to Carlin’s own instruction to put on a uniform)

with Smith’s report.13

Nothing in the record shows that Carlin’s decision to

refer Plaintiff’s case to the personnel committee was anything

but Carlin’s independent decision following Carlin’s own

meeting with Plaintiff. In addition, the final decision to

terminate Plaintiff’s employment was not Smith’s decision

and was not Carlin’s decision, but was the decision of the

personnel committee.14 Furthermore, no evidence in this

record even intimates that the personnel committee had a

The reason Plaintiff showed up for work wearing the red 13

jogging suit was that she faced immediate dismissal if she was late one more time. Depending upon the circumstances of a case, evidence of 14

discriminatory intent of persons other than the final decisionmaker may be important in some employment discrimination litigation. We are simply setting out the circumstances of this case. 6 history of racial discrimination in its decisions. Nor is there

evidence that Carlin had a history of racial statements or of

racial discrimination in her decisions. In fact, even for Smith -

- who had worked at the hospital for fourteen years -- there is

no evidence that Smith’s concrete decisions, as a supervisor,

had historically demonstrated racial discrimination. Given

the circumstances, Smith’s statements -- remote from the

main events -- cannot establish a prima facie case of

discriminatory discipline.

Conclusion

In this disciplinary discharge case, no direct evidence of

discrimination was submitted at trial. No statistical evidence

was presented. No evidence shows that, after Plaintiff was fired,

she was replaced by a nonminority employee. No pattern-or-

practice of discrimination was evidenced or attempted to be

7 evidenced. And, most important, no similarly situated,

nonminority employee was identified who was treated better

than Plaintiff.15

Plaintiff failed to establish a prima facie case. Judgment as

a matter of law for Defendant was appropriate.

AFFIRMED.16

15 We therefore put aside cases that may have one or more of these kinds of evidence, and we decide nothing about cases that do have one or more of them. 16 We also note that Plaintiff cannot avoid this result simply by disputing whether Smith (or Carlin) actually instructed her to change into scrubs. There may have been a misunderstanding. Smith may have been mistaken or lied. Carlin may have been mistaken or lied. But federal courts do not sit to review the accuracy of the employer’s fact findings or of the employer’s decision to terminate a plaintiff’s employment. See Nix, 738 F.2d at 1187 (“Title VII is not a shield against harsh treatment at the workplace. . . . The employer may fire an employee 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 discriminatory reason.” (internal quotes and citations omitted)). The true reasons for Plaintiff’s termination would be important only to the extent that they 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, 8 Appendix

While Plaintiff never made a formal proffer, Plaintiff and

Defense counsel did discuss the statements during the pretrial

hearing on Defendant’s motion in limine to exclude the

statements allegedly made by Smith. The applicable portions of

the pretrial hearing transcript contain these words:

specifically a phony reason for some action.”). But, because we 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). 9 THE COURT: All right. You’ve got another motion with regard to the comments allegedly made by Charlene Smith. **** THE COURT: When were these comments allegedly made? MR. WIGGINS [Plaintiff’s Counsel]: Your Honor, the Plaintiff testified – THE COURT: Excuse me, I’m – Mr. Duffie has the floor. MR. WIGGINS: I’m sorry, I thought you were addressing me, Your Honor. MR. DUFFIE [Defendant’s Counsel]: It’s a little confused from her testimony. One thing she [Plaintiff] does say is that one of these comments were made, I think it was the first one, “You black girls make me sick. Sometimes I feel like just hitting you in the head,” she did specifically allege that that comment was made, I believe, a week before her discharge.

The other one she testified, I believe at one point, that Ms. Smith used to make these comments once a week; and then at one point, once a year. So, it’s a little confusing on the others. THE COURT: Now you may respond, Mr. Wiggins. MR. WIGGINS: I have no response to that, Your Honor. I’m in agreement.

[Court grants motion.]

10 The testimony referred to at the hearing was deposition

testimony. Although it does not appear that Plaintiff’s

deposition was presented to the district court during the pretrial

hearing on Defendant’s motion in limine, the deposition was

before us as part of the record on appeal. Plaintiff’s deposition

provides the following information about the allegedly racial

statements:

Q. And how often did you hear these comments? A. [Plaintiff] Maybe about once a week. Q. Who made the comment “You black girls make me sick”? A. Ms. Smith made those comments sometimes.

Q. When did Ms. Smith make this comment? A. I don’t know the exact time. I don’t know the exact time. It was just like maybe once a week or something, you know. Q. So once a week Ms. Smith would say, “You black girls make me sick”? A. I don’t know if it was once a week. Possibly. Q. I don’t want you to guess. A. I don’t know. Q. Was it possibly once a year? A. I don’t know. ****

11 Q. Okay. Well, when did it happen in relation to your termination? A. About a week, possibly about a week before my termination. **** Q. Did she direct the comment at you or someone else? A. I thought it was directed at me. . . . **** Q. You gave me a couple of phrases that you said allegedly were uttered at work. Was Ms. Smith the one who said all of these comments about black girls? A. Yes, ma’am. Q. So it was only Ms. Smith? A. Yes, ma’am, as far as I can remember. Q. She said, “you black girls make me sick”? A. Yes. Q. In January of 1995?

A. She said that “You black girls make me sick. Sometimes I feel like just hitting you in the head.” Q. Oh, so that was all in one phrase? A. That particular time. Now, sometimes they were separate. Q. Who else was she talking to? She said “girls”? A. I’m sure she was – well, I can’t speculate. All I can do is say that that was what was told to me. Q. Who told you that? A. Ms. Smith.

12 Q. Ms. Smith told you “You black girls make me sick. You make me want to hit you in the head”? A. Yes, ma’am. Q. And that was a week before your termination? A. About a week. Q. Who said, “You black girls get away with everything”? A. Ms. Smith. Q. When did she say that? A. I don’t know the exact day.

13 Q. What year? A. That would be – I’m not sure what date that was.

The Motion for Rehearing is DENIED.

FOR THE COURT:

/S/ J.L. EDMONDSON UNITED STATES CIRCUIT JUDGE

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