Case: 16-16693    Date Filed: 09/25/2017   Page: 1 of 6


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-16693
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 4:15-cv-00102-RH-CAS

LINDA H. MOSER,

                                                              Plaintiff-Appellant,

                                     versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                             Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                              (September 25, 2017)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Linda Moser appeals the summary judgment in favor of her former

employer, the Florida Department of Corrections, and against her complaint of
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employment discrimination and retaliation, in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), -3(a), and the Florida Civil Rights

Act of 1992, Fla. Stat. § 760.01(1). The district court also entered summary

judgment against Moser’s complaint that the Department violated the Florida

Public Sector Whistleblower Act, Fla. Stat. § 448.101, et seq., but Moser has

abandoned any challenge that she could have raised to that adverse ruling. See

Hamilton v. Southland Christian School, Inc., 

, 1318–19 (11th Cir.

2012). Moser argues that she presented sufficient evidence of pervasive gender-

based harassment by the Warden of the Okaloosa Correctional Institution to

support her complaints of a hostile work environment and of retaliation. We

affirm.

      We review a summary judgment de novo. Moton v. Cowart, 

,

1341 (11th Cir. 2011). We view the evidence in the light most favorable to the

non-moving party. 

is appropriate when the movant

establishes that there is no genuine dispute of a material fact and that it is entitled

to a judgment in its favor as a matter of law. 

court did not err by entering summary judgment against Moser’s

complaint of a hostile work environment. Title VII and the Florida Civil Rights

Act prohibit an employer from discriminating against an employee with respect to

the “terms, conditions, or privileges of employment, because of” her gender. 42


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U.S.C. § 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a). But Moser failed to prove that

she was subjected to unwelcome harassment because of her gender. See Miller v.

Kenworth of Dothan, Inc., 

, 1275 (11th Cir. 2002). Moser speculated

that her gender was the reason that the warden assigned her more duties than those

required of her male precedessor, Jimmy Jeffery; that she did not receive assistance

from fellow employees; and that she did not receive a permanent set of keys. But

Moser presented no evidence that she suffered harassment based on her sex. The

Warden testified that he promoted Moser to supervise the mailroom, commended

her for her work ethic and named her employee of the month, and later promoted

her to fill Jeffery’s position as general services supervisor, with the warning that

she would have to assume additional responsibilities. Jeffery and the Warden

stated that the mail department was understaffed early in Moser’s and Jeffery’s

tenures, and Jeffery averred that he completed his extra duties by asking coworkers

to repay his past favors. The Warden testified that he tried to assist Moser by

volunteering officers to perform extra duties when they were available. Moser

provided no evidence “that but for the fact of her sex, she would not have been the

object of [the alleged] harassment.” See Henson v. City of Dundee, 

,

904 (11th Cir. 1982).

      The district court also did not err by entering summary judgment against

Moser’s complaint that she was terminated in retaliation for filing a grievance


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against the Warden based on his discrimination. Even if we were to assume, like

the district court, that Moser established a prima facie case of retaliation in

violation of Title VII and the Florida Civil Rights Act, 42 U.S.C. § 2000e-3(a); Fla.

Stat. § 760.10(7), the Warden provided a legitimate, nonretaliatory reason for

Moser’s termination, see Alvarez v. Royal Atl. Developers, Inc., 

,

1264 (11th Cir. 2010). The Office of the Inspector General discovered that Moser

had emailed a literary journal endeavoring to misappropriate prize money that it

had awarded to an inmate, Charles Norman; that Moser had filed a disciplinary

action against Norman falsely accusing him of failing to submit a waiver

renouncing the prize; and that Moser returned a letter to Norman under the false

pretense that he was operating a business in violation of prison rules. Moser

acknowledged that Norman had submitted a waiver of compensation and that his

letter had not concerned a business, and Moser’s assistant, Kimberly Kenealy,

stated that Moser had a “vendetta” against Norman. The Warden fired Moser based

on the findings of an independent investigator that Moser had acted with

negligence, had failed to answer truthfully questions related to the performance of

her official duties, had engaged in conduct unbecoming a public employee, and

knowingly had submitted inaccurate or untruthful information.

      Moser failed to present any circumstantial evidence that her termination was

a pretext for discrimination or retaliation. That the investigation commenced after


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Moser filed her grievance against the Warden and concerned misconduct Moser

committed a year earlier is, as the district court stated, “sheer coincidence.”

Norman instigated the investigation by reporting Moser’s misdeeds to the Warden,

who then promptly transferred the matter to the Inspector General. Moser argued

that the investigation was flawed and the report was defective, but “[w]e are not in

the business of adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory animus motivates

[the] challenged employment decision.” Rojas v. Florida, 

, 1342

(11th Cir. 2002) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 

, 1361 (11th Cir. 1999)). Moser blamed her termination on the Warden’s

remarks that they “don’t like each other” and she was not a “team player,” but

those remarks do not suggest the Warden harbored any discriminatory animus.

Moser also argued that she was fired because, according to Jeffery, the Warden had

a tendency to “h[o]ld a vendetta . . . [and] bring up stuff from the past when it

would suit his purpose,” but the Warden fired Moser after receiving the

investigator’s report. Ellis v. England, 

, 1326 (11th Cir. 2005)

(“mere conclusions and unsupported factual allegations are legally insufficient to

defeat a summary judgment motion”). Moser failed to prove that discrimination or

retaliation was the motivation for her termination.




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      Moser also failed to prove that other employees were treated more favorably

than her. Moser argued that Kenealy was not disciplined for disavowing that

Norman had filed a waiver of compensation, but Kenealy was not an adequate

comparator. See Wilson v. B/E Aerospace, Inc., 

, 1091 (11th Cir.

2004). Kenealy was a member of Moser’s protected class, was her subordinate, and

was not the target of the investigation into the misappropriation of Norman’s prize

money and filing a false disciplinary charge against Norman. “[T]he quantity and

quality of [a] comparator’s misconduct [must] be nearly identical” to evidence

discriminatory discipline. Burke-Fowler v. Orange Cty., Fla., 

, 1323

(11th Cir. 2006) (quoting Maniccia v. Brown, 

, 1368 (11th Cir.

1999)).

      We AFFIRM the summary judgment in favor of the Warden.




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