Where, as here, a plaintiff uses circumstantial evidence to prove retaliation
under Title VII, we apply the same McDonnell Douglas burden-shifting approach
discussed above. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir.
2010). The plaintiff bears the ultimate burden of proving retaliation by a
preponderance of the evidence and that the reason provided by the employer is a
pretext for prohibited retaliatory conduct. Id.
To establish a prima facie claim of retaliation under Title VII, a plaintiff
must prove that she: (1) engaged in statutorily protected activity; (2) suffered a
materially adverse action; and (3) there was some causal relation between the two
events. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir.
2008). While the parties appear to agree Tebo suffered a materially adverse
4 In her brief, Tebo argues, for the first time, that her complaint should have survived summary judgment because she presented a “convincing mosaic” of circumstantial evidence that created a triable issue as to Parrott’s discriminatory intent. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011). However, because Tebo failed to raise this argument before the district court, it is waived on appeal. See Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009).
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action—her termination—Appellees contest whether she has met the remaining
two elements. However, like the district court, we conclude Tebo set forth a prima
facie case of retaliation.
Appellees argue Tebo did not engage in statutorily protected activity
because her “informal complaint to the EEOC was not really a claim of
discrimination,” but part of her ongoing deliberate effort to undermine Parrott. To
the extent Appellees assert Tebo’s letter to the EEOC is not protected activity
because it was not a formal complaint, we have previously determined that
informal complaints can constitute protected activity. See Rollins v. State of Fla.
Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (“[T]he protection
afforded by the statute is not limited to individuals who have filed formal
complaints.”). As to Appellees’ assertion that Tebo’s letter is not protected
because it was part of her ongoing insubordination, we do not find this argument
compelling. Appellees correctly note we have held that “the manner in which an
employee expresses her opposition to an allegedly discriminatory employment
practice must be reasonable.” Id. at 400-01. But even assuming we agreed with
Appellees that Tebo’s general conduct toward and concerning Parrott was
otherwise unreasonable, there is no indication that the specific activity at issue
here—Tebo’s informal complaint to the EEOC—was conducted in an
unreasonable or disruptive manner. Id.
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Appellees also argue Tebo failed to show a causal connection between the
protected activity and her termination because several intervening acts—
specifically Tebo’s actions identified in the termination letter—broke any causal
link. However, for purposes of determining whether Tebo has made a prima facie
case, we conclude the close temporal proximity between Tebo’s protected activity
and her termination—the record indicates Parrott terminated Tebo a mere 32 days
after receiving her informal complaint—is sufficient to satisfy the causation
element. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007) (“The burden of causation can be met by showing close temporal proximity
between the statutorily protected activity and the adverse employment action.”).
Having concluded Tebo established a prima facie case of retaliation, we turn
to whether she offered sufficient evidence to create a jury issue as to whether
Appellees’ proffered reasons for Tebo’s termination were pretext for retaliation.
Viewing the evidence in the light most favorable to her, a jury could reasonably
infer that Parrott retaliated against her after he was notified, on March 16, 2015,
that she sent a letter to the EEOC alleging he had engaged in a pattern of
discriminatory conduct. As discussed above, the record shows close temporal
proximity between the protected activity and her termination, indicating that the
two were related. Parrott admitted he learned of Tebo’s letter to the EEOC on
March 16, 2015, and began drafting her termination around the same time. Within
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three days of learning of Tebo’s letter, Parrott had taken away one of her
significant job duties and given it to another employee. Within 16 days, the city
council stripped her of her job title and voted to replace her with Parrott, and
within a month, Parrott fired her.
The district court found the temporal proximity “troubling” but ultimately
concluded it was insufficient, on its own, to create a triable issue as to pretext.
While it generally is true that temporal proximity, though relevant, is insufficient
on its own to establish pretext, see Jones v. Gulf Coast Health Care of Delaware,
LLC, 854 F.3d 1261, 1276 (11th Cir. 2017), here there is circumstantial evidence
beyond the mere timing of Tebo’s firing to suggest Parrott’s proffered reasons for
her termination were pretextual. In particular, we find it relevant that all the
reasons for Tebo’s firing listed in the termination letter arose from conduct that
occurred—or, in the case of Tebo’s unauthorized email account, was discovered—
after Parrott learned of the EEOC complaint and began drafting the letter. From
this a reasonable juror could conclude that Parrott was looking for reasons to fire
Tebo after he learned of her letter to the EEOC. Accordingly, we reverse the
district court’s ruling granting summary judgment as to Tebo’s retaliation claims
and remand for further proceedings.
THIS IS THE REMAND DOCUMENT TO THE TRIAL COURT FROM THE APPELLATE COURT. IT IS A TOUGH ROAD TO GO DOWN BUT THERE ARE A COUPLE OF WAYS. DEBARY MUST PROVE THAT TEBO WOULD HAVE BEEN TERMINATED FOR CONDUCT UNBECOMING IRREGARDLESS OF THE EEOC COMPLAINT. THIS CHANGE IS “IFFY” LEGAL WISE BUT NOT UNWINABLE. ALL IT TAKES IS A CHANGE IN STRATEGY. I’M NOT AN ATTORNEY BUT I HAVE READ TEBO’S FILE FROM DEBARY AND THEY HAD LOTS OF REASONS TO TERMINATE HER NOT THE LEAST OF WHICH WAS THE “BOGUS” EMAIL ACCOUNT. THE PROXIMITY ISSUE, ALREADY DECIDED BY THE APPELLATE COURT, IS A TOUGH HURDLE TO GET OVER BUT IT SEEMS WITH THE PROPER ARGUMENT TO BE WINNABLE.
OR DEBARY CAN CUT THEIR LOSSES AND TRY FOR A LOWER SETTLEMENT COST.
WILL TELL YOU MORE WHEN I FIND OUT WHAT DEBARY IS GOING TO DO. THE BALL IS IN THEIR COURT. DO THEY CONTINUE TO PLAY OR DO THEY LEAVE THE FIELD AND PAY TEBO HER POUND OF FLESH AT THE TAXPAYERS EXPENSE. AS I SAID, STAY TUNED,