Burke-Fowler v. Orange County, Fla.

• Decision Date: 27 March 2006
• Docket Number: No. 05-14899 Non-Argument Calendar.,05-14899 Non-Argument Calendar.
• Citation: 447 F.3d 1319
• Parties: Vivian BURKE-FOWLER, Plaintiff-Appellant, v. ORANGE COUNTY, FLORIDA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1319

447 F.3d 1319

Vivian BURKE-FOWLER, Plaintiff-Appellant, v. ORANGE COUNTY, FLORIDA, Defendant-Appellee.

No. 05-14899 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

March 27, 2006.

COPYRIGHT MATERIAL OMITTED

John Vernon Head, Howey In Hls, FL, for Plaintiff-Appellant.

Patrick Michael Muldowney, Kevin W. Shaughnessy, Marilyn G. Moran, Baker & Hostetler, LLP, Orlando, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

Vivian Burke-Fowler appeals the district court's grant of summary judgment to her former employer, Orange County, Florida, in her suit alleging race discrimination under federal law and marital status discrimination under Florida state law. We affirm.

I.

In September 1984 Douglas Fowler was convicted of murder and robbery and was sentenced to life in prison under the custody of the Florida Department of Corrections. In April 1987 Vivian Burke was hired by the Orange County Corrections Department and soon thereafter became a certified correctional officer.¹ In 1993 she was assigned to the Municipal Justice Building Annex, where she supervised inmates facing death or life in prison, including Fowler. She worked at the Annex until it was closed in June 1999.

In January 1999 Fowler was assigned to the Annex while awaiting his appeal, and at some point while he was an inmate there, he chatted with Burke. As the conversation progressed, they realized they shared an acquaintance with a woman named Carolyn. Burke and Fowler also determined that they might have met each other once before during the early 1980s.

Fowler was incarcerated in the Annex until June 1999. During that time, Burke had direct contact with and directly supervised Fowler on about twenty occasions, and she asserts that her conduct during these interactions was always strictly professional. In August 1999 Fowler was transferred back to Okeechobee Correctional Institution to continue serving his life sentence.

In November 1999 Burke received a letter from Fowler at her home. Their mutual acquaintance, Carolyn, allegedly had placed the letter in Burke's mailbox. Burke began corresponding with Fowler, and they exchanged weekly letters. The next month she requested visitation privileges at Okeechobee Correctional Institution and began visiting Fowler regularly. In November 2000 they were married in the Okeechobee prison. Burke-Fowler did not tell any of her supervisors about her relationship with Fowler or about her marriage to him.

After they were married, Burke-Fowler continued to visit Fowler, corresponded with him, and sent him money until he was released on parole in January 2002. In March 2002 Burke-Fowler's supervisor asked her if she was "married to an inmate," and she replied that she was. Brief of Appellant at 8. On March 29, 2002, Burke-Fowler received a notice of investigation from her employer, Orange County.

During almost fifteen years of employment, Burke-Fowler had received high ratings in her performance evaluations. She admits that she knew about Orange County's policy prohibiting correctional officers from fraternizing with inmates, but she believed that this only applied to inmates housed in Orange County's facilities. She asserts that Fowler's brother Jerome, who was a certified correctional officer employed by Orange County, continued to have contact with his brother after his incarceration. Burke-Fowler says that Jerome Fowler's supervisors were aware of that interaction, and he was not disciplined for it.

In early June 2002 Burke-Fowler was terminated for the stated reason that she had violated the County's anti-fraternization policies. She filed a grievance claiming wrongful termination. After the formal grievance process, an arbitration hearing was held, and the arbitrator found that Burke-Fowler's termination was justified. She filed suit against Orange County on December 22, 2003, alleging that the County had discriminated against her on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1981, and on the basis of marital status in violation of the Florida Civil Rights Act, Fla. Stat. § 760.10.

The County filed a motion for summary judgment on April 1, 2005, and on June 30, 2005 the district court granted that motion as to all of Burke-Fowler's claims. Her motion for reconsideration was denied.

II.

We review a district court's grant of summary judgment de novo. Jones v. Dillard's, Inc., 331 F.3d 1259, 1262 (11th Cir. 2003). Burke-Fowler, who is African American, contends that summary judgment against her on her Title VII race discrimination claim should be reversed because she established a prima facie case and showed that her termination for fraternization with an inmate was a pretext for race discrimination.

The two theories of intentional discrimination under Title VII are disparate treatment discrimination and pattern or practice discrimination. EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.2000). Disparate treatment claims can be proven using direct evidence (requiring no inference or presumption) or circumstantial evidence. Id. Racial discrimination claims based on circumstantial evidence are evaluated under the McDonnell Douglas burden shifting framework. See id. To establish a prima facie case for disparate treatment in a race discrimination case, the plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) her employer treated similarly situated employees outside of her protected class more favorably than she was treated; and (4) she was qualified to do the job. Id. If the plaintiff satisfies these elements, then the defendant must show a legitimate, non-discriminatory reason for its employment action. Id. If it does so, then the plaintiff must prove that the reason provided by the defendant is a pretext for unlawful discrimination. Id.

Burke-Fowler contends that the county is liable for disparate treatment discrimination. There is no dispute that Burke-Fowler meets the first, second, and fourth elements of her prima facie case. The third element is the only one at issue here. When a plaintiff alleges discriminatory discipline, to determine whether employees are similarly situated, we evaluate "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999) (citations and quotation marks omitted). When making that determination, "[w]e require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges."² Id. (citation omitted); see also Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1185 (11th Cir.1984) (requiring a plaintiff bringing a discriminatory discipline claim to show "that the misconduct for which he was discharged was nearly identical to that engaged in by an employee outside the protected class whom the employer retained") (citations, quotation marks, and alterations omitted).

Orange County contends that because Burke-Fowler initiated an intimate relationship with and then secretly married a convicted murderer incarcerated in Okeechobee state prison shortly after he was under her supervision at the Annex, she violated the County's well-established policies. Those violations, according to the County, were the basis for Burke-Fowler's termination as a correctional officer. The County argues that Burke-Fowler failed to present evidence of any correctional officer outside of her protected class who engaged in similar conduct but was not terminated and that she failed to show that the County's stated reason for firing her was pretextual. The County asserts that Burke-Fowler violated the following policies and codes of conduct:

Corrections Department Admin. Order, AM. 200, Code of Ethics, IV, Procedure: Employee Conduct 1(p):

Employees will not fraternize with inmates, clients, or residents.

Corrections Department Admin. Order, AM. 200, Code of Ethics, IV, Procedure: Employee Conduct 1(q):

Employees will not correspond, call or receive phone calls from inmates, clients or residents without prior written approval of their Department Manager.

Corrections Department Admin. Order, AM. 200, Code of Ethics, II, Policy:

Employees are expected to adhere to the Orange County Corrections Department Code of Ethics, the Code of American Correctional Association and other appropriate professional organization standards associated with their specific profession.

Personnel Policy Manual, Section Seven, Code of Conduct, General Statement, # 1:

Employees shall in no way act in any manner which may discredit the government of Orange County, public officials, fellow employees or themselves.

Brief of Appellee at 13-14.

Burke-Fowler contends that she has shown an appropriate class of comparators—correctional officers who were disciplined for fraternizing with inmates. She asserts that the County discriminated against her on the basis of her race because it terminated her but did not terminate white correctional officers who fraternized with inmates. She also alleges that the County terminates minority correctional officers for fraternization with inmates over ninety percent of the time but that white correctional officers retain their jobs over sixty-six percent of the time for the same violation. She argues that these statistics show that the County's decision to terminate her was motivated by racial animus.

Burke-Fowler points to Cynthia Robinson, a white correctional officer who was not terminated for her romantic relationship with a woman who was arrested, convicted, and placed on probation. Robinson received telephone calls from this inmate...