ORDER

TIMOTHY J. CORRIGAN, District Judge.

Plaintiff Ecia Truesdale, who is African-American, worked for defendant CSX Transportation, Inc. ("CSXT") as a customer service representative and coordinator from June 2012 until August 2015 when CSXT terminated her employment. Truesdale sued under 42 U.S.C. § 1981, alleging CSXT harassed and discriminated against her based on her race (Count I) and retaliated against her for making complaints to the human resources department (Count II). CSXT has moved for summary judgment (Doc. 14), Truesdale responded (Docs. 18 & 19), and CSXT replied (Doc. 24). "Summary judgment is proper `if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179, 1184, n.1 (11th Cir. 2016) (quoting Fed.R.Civ.P. 56(a)).

I. Undisputed Facts

In her job as a customer service representative, Truesdale worked with customers to track and locate freight on CSXT's rails and trucks. Doc. 14-5, Ex. 1; Doc. 18-6, Ex. 80. At some point her title changed to customer service coordinator, but her responsibilities remained the same. Doc. 18-6, Ex. 80. At her first year-end review, Truesdale's supervisor, Janel Williams (who is African-American), rated Truesdale's performance as unsatisfactory. Doc. 14-5, Ex. 5; Doc. 14-15 at ¶ 6. Truesdale disagreed with the rating. Doc. 14-5, Ex. 9. Williams provided Truesdale with detailed feedback as to why the rating was warranted. Doc. 14-5, Ex. 10.

Williams left CSXT in April 2013 and Debra Ghourley (who is white) then supervised Truesdale until November 2013 when Ghourley became the Director of Customer Service. Doc. 24-1. Ghourley completed Truesdale's 2013 year-end review and initially rated her performance as "fair." Doc. 14-5, Ex. 15. Truesdale disagreed with the rating and Ghourley, in consultation with her own supervisor (who is white) and the human resources director (who is African-American), changed Truesdale's score to "satisfactory" which, unlike the "fair" rating, entitled Truesdale to receive a raise. Doc. 14-2 at Tr.1 150; Doc. 14-5, Ex. 13, Ex. 17, Ex. 18. Ghourley explained that because she had not supervised Truesdale for the entire year, she changed the rating to give Truesdale "the benefit of the doubt," Doc. 14-16 at ¶ 6, though Truesdale testified that Ghourley only grudgingly raised her rating, and reminded Truesdale on many occasions that she disagreed with the higher rating. Doc. 14-2 at Tr. 155-56.

Jennifer Perry (who is white) began supervising Truesdale in February 2014. Doc. 24-1 at ¶ 4; Doc. 14-2 at Tr.158, Doc. 14-6, Ex. 19.2 In June 2014, Truesdale was counseled after sending her biggest customer an email telling the customer that her tone was "very disrespectful, rude and condescending," and that she was making Truesdale's work "very difficult." Doc. 14-6 at Ex. 22; Doc. 14-2 at Tr. 164. Perry completed Truesdale's 2014 year-end review, rating her as "sometimes achieves expectations," and noting that Perry was seeing improvement after "work[ing] through several issues" with Truesdale to help her better address her customers' needs. Doc. 14-6, Ex. 19. In February and March 2015 different coworkers complained to Perry about interactions with Truesdale. Doc. 14-7, Ex. 51, Ex. 53. In March 2015 Truesdale was counseled for directing a customer to submit inquiries in a manner that created more work for the customer and made it appear that Truesdale was handling a high volume of inquiries. Doc. 14-7, Ex. 54, Ex. 55.

Then on May 26, 2015, accompanied by two human resources directors, LaTisha Thompson and Kelly Toaston (both African-American), Perry met with Truesdale and issued her a formal Performance Warning. Doc. 14-6, Ex. 25. Perry advised Truesdale that if she did not sustain acceptable performance over the next sixty days, she would be subject to further disciplinary action, up to and including termination. Id. Several days later, Truesdale sent a lengthy email to Toaston explaining that she felt she was being retaliated against and treated unfairly for having contacted human resources to dispute her performance reviews; she felt threatened and intimidated by Perry and Ghourley (who was now Perry's supervisor); and management was sabotaging her by not timely sharing performance information with her. Doc. 14-6, Ex. 27. Truesdale's email does not once mention race. Truesdale closed her letter by seeking Toaston's assistance in finding another position within CSX. Id. Truesdale applied for other open positions at CSX but was not selected. Doc. 14-6, Ex. 32, Ex. 33.

Meanwhile, Perry and Toaston met with Truesdale every two weeks for coaching sessions meant to improve her performance. Doc. 14-6, Ex. 31, Ex. 35; Doc. 14-7, Ex. 39, Ex. 40. However, Perry did not rate Truesdale's performance as meeting expectations on a regular basis and at the end of the sixty days, Perry recommended to Ghourley that Truesdale be terminated. Doc. 14-10 at Tr. 35. Ghourley, Perry and Toaston met with Truesdale, and Ghourley terminated Truesdale on August 10, 2015.

II. Discussion3

In her two count complaint, Truesdale alleges she was harassed and terminated because she is African-American and retaliated against for reporting unlawful employment practices, all in violation of 42 U.S.C. § 1981. Doc. 1. Race discrimination and retaliation claims brought under § 1981 are analyzed in the same manner as claims brought under Title VII.4 Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000) (analyzing § 1981 claim of wrongful termination under Title VII framework); Bryant v. Jones, 575 F.3d 1281,1296 n.20 (11th Cir. 2009) (stating that elements of a § 1981 claim of hostile work environment are same as those under Title VII); Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (analyzing § 1981 and Title VII retaliation claims under the same standard).

A. Termination Claim (Count I)

Because Truesdale relies on circumstantial evidence to attempt to prove her race discrimination claim, the Court first addresses her claim under the McDonnell Douglas burden-shifting framework. Smith v. Lockheed-Martin, Corp., 644 F.3d 1321, 1325 (11th Cir. 2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). Barring success there, the Court may consider whether Truesdale has painted "a convincing mosaic of circumstantial evidence" from which a jury could infer intentional discrimination. Id. at 1328-29 (quotation and citation omitted).5

Starting first with the McDonnell Douglas analysis, Truesdale must establish a prima facie case of discrimination by showing "(1) that [she] is a member of a protected class (here, [African-American]); (2) that [she] was qualified for the position [she] held; (3) that [she] was discharged from that position; and (4) that in terminating [her] employment, [CSXT] treated [her] less favorably than a similarly-situated individual outside [her] protected class." Smith, 644 F.3d at 1325 (citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003)). If Truesdale can establish a prima facie case, the burden shifts to CSXT to rebut the presumption that its decision to terminate Truesdale was motivated by race, which it may do by articulating a legitimate non-discriminatory reason for her termination. See Id. at 1325. If CSXT meets its burden of production, "the presumption of discrimination is rebutted" and "the inquiry `proceeds to a new level of specificity,' whereby [Truesdale] must show [CSXT's] proffered reason to be a pretext for unlawful discrimination." Id. at 1325-26 (quoting EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002)).

The Court finds Truesdale cannot establish a prima facie case of discrimination because she cannot demonstrate that in terminating her employment, CSXT treated her less favorably than similarly-situated co-workers who were not African-American. Truesdale testified that one white co-worker (Roxanne McElroy) received a "bad review" in 2013 but was not terminated, and two other white co-workers (Janeene Bartley and Patti Cole) performed as poorly as Truesdale but were not disciplined.6 But Truesdale also testified that she had never seen Bartley or Cole's personnel files, Doc. 14-3 at Tr. 213; doesn't know if they were ever disciplined or how they scored on their performance reviews, id.; didn't know how many mistakes Bartley made, Doc. 14-1 at Tr. 90; hadn't seen any of McElroy's subsequent reviews, Doc. 14-2 at Tr. 92-93; was "making a guess" that McElroy had as many performance deficiencies as Truesdale, id. at Tr. 92; had never observed Cole's work, Doc. 14-3 at Tr. 213; and admitted that her source of information about Cole was "rumors in the grapevine." Doc. 14-2 at Tr. 92. In fact, neither McElroy, Bartley or Cole ever received an unsatisfactory performance review (as did Truesdale in 2012) and, other than McElroy's "fair" review in 2013 (the year Truesdale's initial "fair" review was subsequently changed to "satisfactory" at her request), all three of them performed better than Truesdale all four years they were evaluated. See Doc. 14-16 at ¶ 9.7

Truesdale also complains that she suffered mistreatment others did not, including receiving emails in all capital letters, being talked about, having an increased workload, being nitpicked and scrutinized, and not being selected to transfer to another position in the company. But these incidents are not adverse employment actions within the meaning of the law, whether viewed separately or cumulatively.8 See Davis v. Town of Lake Park, 245 F.3d 1232, 1239, 1242, 1244, 1245 (11th Cir. 2001) (holding that conduct is only actionable under Title VII's anti-discrimination clause if it effects "a serious and material change in the terms, conditions, or privileges of employment" "as viewed by a reasonable person in the circumstances" and that unfair work assignments, negative evaluations, criticism, loss of self-esteem, and loss of prestige, while unpleasant, are not actionable except in rare circumstances).

Furthermore, even if the Court found Truesdale was able to establish a prima facie case of discrimination, CSXT has put forward a legitimate, non-discriminatory reason to terminate Truesdale, as evidenced by the well-documented long-standing history of her poor performance on nearly every criteria CSXT measures. While Truesdale points to a few stray remarks that she contends support her theory of racial animus,9 she has entirely failed to rebut CSXT's evidence that she was a poor performer and was rated as such by three different supervisors over three different years, including by an African-American supervisor. See Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007) (explaining that under McDonnell Douglas burden shifting analysis, "plaintiff must meet the reason proffered head on and rebut it") (citations omitted). Truesdale's claim that she suffered an adverse employment action based on race discrimination does not survive the McDonnell Douglas analysis.

Nor does the Court find Truesdale has presented "a convincing mosaic of circumstantial evidence" from which a jury could infer intentional discrimination as the basis for CSXT taking adverse employment action against her. Smith, 644 F.3d at 1328-29. Truesdale's evidence includes the remarks Ghourley said (or maybe said) that offended Truesdale (recounted in fn. 9); that a three person panel (of which Ghourley and African-American Human Resources Director LaTisha Thompson were members) did not select another African-American person for a promotion (Truesdale did not apply for that position) (see Doc. 14-2 at Tr. 147); the hearsay that Sherita Jacobs, an African-American co-worker who transferred out of Ghourley's supervision, told Truesdale that she thought Ghourley was discriminating against her (Jacobs) based on her race (see Doc. 14-3 at Tr. 232-33); and Truesdale's own view that the treatment she received was because she is African-American (see Doc. 14-2 at Tr. 111-12, Doc. 14-3 at Tr. 178). No jury could infer intentional discrimination on this thin record. See, e.g., Connelly v. Metro. Atlanta Rapid Trans. Auth., 764 F.3d 1358, 1364 (11th Cir. 2014) (contrasting plaintiff's weak evidence with "compelling evidence" of discrimination presented in Smith).

B. Harassment Claim (Count I)

Truesdale also asserts a race-based hostile work environment claim. To prove this claim, Truesdale must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016) (quoting Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (alteration omitted)). To establish a prima facie case Truesdale must show (1) she "belong[s] to a protected group," (2) "she was subjected to unwelcome harassment, (3) the harassment was based on a protected characteristic, (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of . . . her employment and create an abusive working environment, and (5) a basis exists for holding [CSXT] liable." Id. (citing Gupta v. Fla. Board of Regents, 212 F.3d 571, 582 (11th Cir. 2000)). "[O]nly conduct that is based on a protected category may be considered in a hostile work environment analysis." Id. (citation and alteration omitted).

Truesdale claims she satisfies her prima facie case because, unlike her white co-workers, supervisors spoke to Truesdale and sent emails to her using a hostile tone, had conversations about her with other co-workers or within their earshot, and did not defend her when customers were abusive.10 Truesdale cannot show that the treatment she received was based on her race as opposed to her undisputedly poor performance.11 Even crediting Truesdale's best case, the treatment she received was not nearly severe or pervasive enough to alter the terms and conditions of her employment, whether the incidents are considered singly or in combination. See id. Truesdale cannot establish a prima facie case of hostile work environment, nor can she piece together a convincing mosaic of circumstantial evidence upon which a jury could find she was harassed based on her race.

C. Retaliation Claim (Count II)

Truesdale has not put forward any direct evidence of retaliation so here too the Court looks to the McDonnell Douglas burden-shifting framework, which requires Truesdale to show "(1) [she] engaged in statutorily protected activity, (2) [she] suffered an adverse employment decision,12 and (3) the decision was causally related to the protected activity." Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261, 1271 (11th Cir. 2017) (quotation and citation omitted). If Truesdale can establish a prima facie case, the burden shifts back to CSXT to "articulate a legitimate, nondiscriminatory reason" for her termination. Id. (quotation and citation omitted). If CSXT does so, then Truesdale "must show that the supposedly legitimate reason was in fact a pretext designed to mask illegal discrimination." Id. (citation omitted).

While not entirely clear, it seems Truesdale is arguing that the retaliation she suffered (her termination) stems from two incidents: an anonymous complaint to a CSXT ethics hotline in February 2014 about race discrimination in a hiring decision; and her complaint to Human Resources about her 2013 year-end review (which complaint resulted in her scores being raised).13 As to the first incident, while there was an anonymous complaint to CSXT's ethics hotline that a hiring panel (on which Ghourley was one of three members) engaged in race discrimination by selecting a white candidate instead of an African-American for a vacancy in February 2014 (which complaint the Court assumes to be statutorily protected activity),14 Truesdale testified that although she had made other complaints to the ethics hotline, she was not sure that she was the person who complained about the February 2014 vacancy. Doc. 14-2 at Tr. 142-47. Furthermore, while Ghourley testified that she suspected it might have been Truesdale who made the anonymous complaint, Truesdale is unable to causally connect her termination eighteen months later to the anonymous ethics hotline complaint. Without other evidentiary support, the temporal proximity of a February 2014 complaint is too far removed from Truesdale's August 2015 termination to demonstrate causation. Jones, 854 F.3d at 1271-72 (explaining that a three to four month period between statutorily protected conduct and adverse employment action is too long to establish causation without other evidence).

Truesdale also claims that Ghourley resented Truesdale for complaining to HR about her 2013 year-end performance review (which resulted in Ghourley raising Truesdale's rating so that Truesdale received a raise) and that this action caused Ghourley to retaliate against Truesdale by pressuring Perry to put Truesdale on a PIP over a year later and ultimately to terminate her. Truesdale does not explain how her complaint about her review (which she does not claim had anything to do with her race) was "statutorily protected activity." See Little v. United Techs., 103 F.3d 956, 961 (11th Cir. 1997) (affirming summary judgment on retaliation claim under § 1981 where plaintiff's complaint was not about an unlawful employment practice). Even assuming that Truesdale's complaint about her year-end review was a complaint about an unlawful employment practice, it is only Truesdale's conjecture that supports her attenuated theory of subsequent retaliation by Ghourley through Perry over a year later.

Moreover, even if Truesdale could establish a prima facie case of retaliation based on either the anonymous call or the year-end review complaint, CSXT points to Truesdale's poor performance as a legitimate, non-discriminatory reason for terminating her and Truesdale has not marshaled any admissible evidence to show this reason is a pretext for unlawful retaliation. As a matter of law, Truesdale cannot prove her retaliation claim.

III. Conclusion

Accordingly, it is hereby

ORDERED:

Defendant CSXT's Motion for Summary Judgment (Doc. 14) is GRANTED. The Clerk shall enter judgment against plaintiff Ecia Truesdale and in favor of defendant CSX Transportation, Inc., and shall thereafter close the file.

DONE AND ORDERED.