Hamilton v. Coffee Health Group (949 F. Supp. 2d 1119, 2013)

MEMORANDUM OPINION AND ORDERS

C. LYNWOOD SMITH, JR., District Judge.

Plaintiff, Sheryl Leggs Hamilton, initiated this action as a pro se litigant on December 29, 2010. The defendants included plaintiffs former employer — an entity identified in the pleadings as “Coffee Health Group, now known as Regional Care Hospital” — and four former co-workers: Team Leader Melinda England; Manager of Patient Accounts David Davis; Central Business Office Director Diane Myrick; and Human Resources Director Cheryl Lee. The complaint accused those defendants of discriminating against plaintiff on the basis of her race and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”).

Prior to commencing this action, plaintiff lodged a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), asserting that she had been reprimanded, disciplined, and then fired on the basis of her race and age. The EEOC investigated plaintiff’s charge, closed her file, and issued a notice of right to sue. Plaintiff then timely filed a complaint based upon the allegations in her EEOC charge. Plaintiffs complaint included the additional accusation that defendant had removed her from the position of “hospital cashier,” and replaced her with a white clerk.

Defendants moved to dismiss the claims against the four individuals, and the claim based on plaintiffs removal from the cashier position. At that point, plaintiff retained an attorney, who filed a response conceding that the challenged claims were due to be dismissed. Accordingly, this court dismissed the claims against the four individuals, and the claim based on plaintiffs removal from the cashier position. The parties then stipulated to the dismissal of plaintiffs claim for violation of the ADEA, and the court accordingly dismissed that claim as well.

Thus, only two claims remain pending: the Title VII retaliation claim addressed in Part IV of this opinion, infra; and the Title VII racial discrimination claim discussed in Part V, infra. The following opinion addresses, first, defendant’s motion to strike portions of the declaration submitted by plaintiff in opposition to defendant’s motion for summary judgment, and then defendant’s dispositive motion.

I. MOTION TO STRIKE

Coffee Health Group, now known as Regional Care Hospital (“defendant”), moves to strike a variety of words, sentences, and paragraphs from plaintiffs declaration in opposition to summary judgment. The first forty-six paragraphs of the declaration contain plaintiffs factual allegations, and the last three paragraphs — which together span fourteen pages — state her rejections of the four declarations submitted by defendant in support of its motion for summary judgment. Defendant argues that portions of plaintiffs declaration contain conclusory allegations, are not based upon plaintiffs personal knowledge, or constitute a “sham” because they contradict, without explanation, plaintiffs prior deposition testimony.

In response, plaintiff argues that the court should treat her declaration leniently, because she is a layperson—an allegation that is made without apparent embarrassment, despite the fact that plaintiff has been represented by counsel since June 13, 2011. In addition, plaintiff submitted a twenty-two-page supplemental declaration in an attempt to explain the contradictions between her deposition testimony and her original declaration,

A. Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56(c)(4) states that: “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Thus, “conclusory allegations without specific supporting facts have no probative value.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000).

Eleventh Circuit precedent permits district courts to “disregard an affidavit as a sham when a party to the suit files an affidavit that contradicts, without explanation, prior deposition testimony on a material fact.” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 n. 6 (11th Cir.2012) (citing Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984)). In order for that rule to apply, however, “‘[t]he earlier deposition testimony [must] consist of clear answers to unambiguous questions which negate the existence of any genuine issue of material fact.’ ” Kernel, 694 F.3d at 1300 n. 6 (alterations supplied) (citing Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir.1986)). The so-called “sham affidavit rule” applies with equal force to declarations. See, e.g., Baloco v. Drummond Co., No. 7:09-CV-00557-RDP, 2012 WL 4009432, *36 (N.D.Ala. Sept. 12, 2012) (citing Van T. Junkins, 736 F.2d at 657).

In light of Federal Rule of Civil Procedure 56(c)(4), and this Circuit’s prohibition on “sham” affidavits, the court will strike the following parts of plaintiffs testimony.

1. Allegations That Melinda England Made Racist Statements to Plaintiff

Plaintiff asserts in her declaration filed in opposition to summary judgment that Team Leader Melinda England said that “African-Americans were lazy and would not pull their load,” “African-Americans were not responsible people,” and that plaintiff, “as an African-American, was lazy and would not work.” During her earlier deposition, however, plaintiff testified as follows:

Q. ... Did Melinda England ever make any race-based comments to you?

A. She as soon to have, she gave me that look.

Q. So you’re basing her racism on a look?

A. She had that look.

Q. Okay. And you believe it was a racist look?

A. That’s correct.

Q. Okay. But she never made any comments to you?

A. She didn’t make a comment to me,

“Recognizing that parties may try to escape summary judgment by using affidavits to create issues of fact where none existed, [the Eleventh Circuit has] allowed an affidavit to be disregarded as a ‘sham’ if it flatly contradicts earlier deposition testimony in a manner that cannot be explained.” Akins v. Fulton County, 278 Fed.Appx. 964, 968 (11th Cir.2008) (alteration supplied).

Given the contradiction between the assertions in plaintiffs declaration that England made specific racist statements to her, and plaintiffs prior deposition testimony that clearly, and without qualification, stated that England did not make any racist comments to her, this court will strike plaintiffs contradictory declaration statements.

2. Allegations That Melinda England Made Racist Statements About Plaintiff to David Davis

Plaintiff also alleged in her declaration that Team Leader Melinda England told Manager of Patient Accounts David Davis that “African-Americans were lazy and would not pull their load,” “African-Americans were not responsible people,” and that plaintiff, “as an African-American, was lazy and would not work.” As previously noted, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4) (alteration supplied).

Plaintiff has produced no evidence that she has personal knowledge of a conversation between Melinda England and David Davis in which such statements allegedly were made. Accordingly, this court will strike that portion of plaintiffs declaration. See, e.g., Fed.R.Evid. 802.

B. Federal Rule of Evidence 701

Plaintiff also argues that some of the testimony contested by defendant is admissible as “lay opinion evidence” pursuant to Federal Rule of Evidence 701(a), because she has personal knowledge of the matters to which she attests, and defendant’s “full and fair opportunity to cross-examine” plaintiff at trial will cure any defects in the assertions contained in her declaration.

Federal Rule of Evidence 701 allows a lay witness to testify in the form of an opinion, provided such testimony “is limited to” those opinions or inferences that are: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. Plaintiffs attorney focuses upon subpart (a) of that Rule, but the most important part in the context of the present issue is the “helpfulness” requirement embodied in Rule 701(b). That subpart is designed to “provide assurances against the admission of opinions which would merely tell the jury what result to reach.” United States v. Rea, 958 F.2d 1206, 1215 (2d Cir.1992) (quoting Fed.R.Evid. 701 Advisory Committee Note on 1972 Proposed Rule) (emphasis supplied); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.1997) (same). Thus, if “ ‘attempts are made to introduce meaningless assertions [that] amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by [Rule 701(b) ].’ ” Rea, 958 F.2d at 1215 (quoting Advisory Committee Note) (alterations supplied).

In addition, the Eleventh Circuit has cautioned that, in the context of employment discrimination suits, “a discharged employee’s mere suspicion of ... discrimination, unsupported by personal knowledge of discrimination, will not constitute [proof of] pretext.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1026 (11th Cir.1994) (alteration supplied) (citing Slaughter v. Allstate Insurance Co., 803 F.2d 857, 860 (5th Cir.1986)). Therefore, “testimony based on conjecture alone is insufficient to raise an issue as to the existence of [an] alleged [discriminatory] policy.” Sturniolo, 15 F.3d at 1026 (alterations supplied) (quoting Slaughter, 803 F.2d at 860). In summary, such testimony does not constitute admissible “lay opinion evidence” under Federal Rule of Evidence 701. The Second Circuit explained this rule in the following manner in Hester v. BIC Corp., 225 F.3d 178 (2d Cir.2000):

[I]n an employment discrimination action, Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant’s adverse employment decision. Witnesses are free to testify fully as to their own observations of the defendant’s interactions with the plaintiff or with other employees, but “the witness’s opinion as to the defendant’s [ultimate motivations] will often not be helpful within the meaning of Rule 701 because the jury will be in as good a position as the witness to draw the inference as to whether or not the defendant” was motivated by an impermissible animus. Rea, 958 F.2d at 1216____ A jury can draw its own conclusions “from observed events or communications that can be adequately described” to it.... But [a witness’s] speculative lay opinion that [a supervisor’s conduct] is attributable to race[, or some other protected characteristic of the particular plaintiff,] rather than anything else, is not helpful ... because it “merely tells the jury what result to reach.” Id. at 1215.

Hester, 225 F.3d at 185 (alterations supplied).

The foregoing principles must be applied to plaintiffs claims (“lay opinions”) that the following five coworkers were racially biased: Team Leader Melinda England; Manager of Patient Accounts David Davis; Central Business Office Director Diane Myrick; Human Resources Director Cheryl Lee; and Human Resources employee Kim Cole.

For example, plaintiff alleged: that England, Davis, and Myrick “singled [her] out as an African-American and applied a much harsher and incorrect system of production [ie., means of measuring productivity] to [plaintiff]”; that Myrick “let [plaintiff] know how she did not like Afri can-Americans by the tone of her voice and her very condescending gestures and attitude towards [plaintiff]”; that Myrick “tried everything she could to keep [plaintiff] from transferring to work in Florence, Alabama because [plaintiff’s] African-American”; that England, Davis, and Myrick used certain documents “as a pretext for suspending [plaintiff] and firing [plaintiff] to cover up [their] ... racial animus against [plaintiff] ”; that England, Davis, and Myrick “singled [plaintiff] out, as an African-American, and wrongfully blamed [her]” for hanging up the telephone on a patient; and that England, Davis, Myrick, Lee, and Cole “made it clear to [plaintiff] how they disliked African-Americans, including [plaintiff] ” when they refused to complete all of the steps of defendant’s appellate procedure for plaintiffs discrimination complaint.

As the Eleventh Circuit has observed, “testimony based on conjecture alone is insufficient to raise an issue as to the existence of [an] alleged [discriminatory] policy.” Sturniolo, 15 F.3d at 1026 (alterations supplied) (quoting Slaughter, 803 F.2d at 860). “Witnesses are free to testify fully as to their own observations of the defendant’s interactions with the plaintiff or with other employees, but ... speculative lay opinion that [a supervisor’s conduct] is attributable to race rather than anything else, is not helpful[.]” Hester, 225 F.3d at 185 (alterations supplied).

Accordingly, this court will consider plaintiffs testimony with regard to the actions of her coworkers, and the tone of voice each used when speaking to her, but will strike her conclusory opinions that the motivation for the alleged actions was discriminatory animus towards African-Americans.

Thus, the following statements can be considered: that England, Davis, and Myrick “singled [plaintiff] out ... and applied a much harsher and incorrect system of production to [plaintiff]”; that Myrick used a disrespectful “tone of her voice and ... very condescending gestures and attitude towards [plaintiff]”; that Myrick “tried everything she could to keep [plaintiff] from transferring to work in Florence, Alabama”; that England, Davis, and Myrick used certain documents “as a pretext for suspending [plaintiff] and firing [plaintiff]”; that England, Davis, and Myrick “singled [plaintiff] out ... and wrongfully blamed [her]” for hanging up the telephone on a patient; and that England, Davis, Myrick, Lee, and Cole refused to complete all of the steps of defendant’s appellate procedure for plaintiffs discrimination complaint.

On the other hand, the following testimony cannot be taken into account when considering defendant’s motion for summary judgment: that England, Davis, and Myrick “singled [plaintiff] out as an African-American” that Myrick “let [plaintiff] know how she did not like African-Americans”; that Myrick thwarted plaintiffs transfer “because [plaintiff is] African-American'”; that England, Davis, and Myrick disciplined and terminated plaintiff “to cover up [their] ,.. racial animus against [plaintiff] that England, Davis, and Myrick “singled [plaintiff] out, as an African-American”; and that England, Davis, Myrick, Lee, and Cole “made it clear to [plaintiff] how they disliked Africawr-Americans, including [plaintiff].”

C. Other Declaration Statements Contested by Defendant

In addition to raising the worthy issues discussed in Parts 1(A) and 1(B) above, defendant’s motion to strike repeatedly quibbles with plaintiffs choice of words on matters that have no apparent impact upon summary judgment issues. See generally Nicolatos v. Sprint/United Management Co., No. 1:05-CV-1722-RL V, 2006 WL 3490817, *9 (N.D.Ga. Nov. 28, 2006) (citing Lane v. Celotex Corp., 782 F.2d 1526, 1530 (11th Cir.1986)) (“The inconsistencies between the deposition and the affidavit must be substantial because not every discrepancy will justify a court’s refusal to consider the contradictory evidence.”) (emphasis supplied); Travelers Indemnity Co. v. General Star Indemnity Co., 157 F.Supp.2d 1273, 1279 (S.D.Ala.2001) (denying a motion to strike because “the ‘inconsistency’ has no impact on the outcome of this action”).

In the interest of conservation of resources, this court will not analyze defendant’s numerous other requests in detail. Upon consideration, the remainder of the motion to strike will be denied. See generally Grant v. Murphy & Miller, Inc., 149 F.Supp.2d 957, 974-75 (N.D.Ill.2001) (“[T]his Court will not perform an exhaustive line-by-line analysis of th[e] motion [to strike] because it has taken care to ensure that its opinion is based only on admissible evidence. Moreover, any such effort could convert this already overly lengthy effort into near-novella length.”) (alterations supplied); United States v. Nutri-Cology, Inc., No. C-91-1332-DLJ, 1993 WL 13585505, *16 (N.D.Cal. Sept. 23, 1993) (“The Court will only consider the relevant, admissible evidence presented in the parties’ summary judgment motions and will not, at this time, either strike the declarations in whole or review the evidence, line by line, for admissibility.”); Dell'Aquila v. River Bank America, No. 92-3271(HLS), 1993 WL 1618646, *4-5 (D.N.J. Apr. 16, 1993) (“The court declines to make a paragraph by paragraph decision as to which sentences or words will be struck from the record.”).

II. SUMMARY JUDGMENT STANDARDS

Federal Rule of Civil Procedure 56 indicates that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and- any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration supplied).

In making this determination, the court must review all evidence and make all reasonable inferences in favor- of the party opposing summary judgment.

[However,] [t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the non-moving party for a reasonable [factfinder] to return a verdict in its favor.

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (en banc) (internal citations omitted) (alterations and emphasis supplied).

III. SUMMARY OF FACTS

Plaintiff is an African-American who was hired to work as a registration/admissions clerk (sometimes referred to as a “cashier”) at Russellville Hospital in Russellville, Alabama in 1999. The following year, defendant purchased the hospital, and created a central business office in the nearby city of Florence, Alabama.

A. Pláintiff s Assignment to the Position of Customer Service Representative

After defendant purchased the hospital, plaintiff continued to reside in Russellville and, understandably, desired to remain at Russellville Hospital. Even so, defendant selected a white employee to fill the Russellville position, and assigned plaintiff to work in its Florence business office as a customer service representative.

Like the duties of a “cashier,” the duties of a customer service representative included answering questions from walk-in patients. However, a customer service representative was also responsible for assisting with billing, insurance, and collections. Indeed, one of the “essential job functions” of the position was attempting to collect on patients’ past-due debt.

According to plaintiff, Central Business Office Director Diane Myrick made the challenged personnel decision because she “needed a white face ... at Russellville Hospital:” Myrick testified, however, that she collaborated on the selection decision with the Human Resources Director of defendant’s three hospitals, and that the white employee selected to fill the position formerly occupied by plaintiff had nine more years of experience than plaintiff.

B. Plaintiffs Allegations That David Davis Treated Her Differently on the Basis of Her Race

Plaintiff began reporting to Manager of Patient Accounts David Davis in 2001. Davis, in turn, reported to Central Business Office Director Diane Myrick, Plaintiff asserts in her declaration that Davis “looked at [her] and talked to [her] in a very harsh, derogatory and demeaning way and tone of voice.” Plaintiff also alleges that “Davis always took pride in saying to [plaintiff] and others, ‘[plaintiff] is dragging at the bottom, as an African-American.’ (Doc. 26-2 [i e., Excerpts from the. Deposition of Plaintiff], at 239-240).” Notably, however, the deposition pages cited by plaintiff as authority for the assertion made in the preceding sentence from her attorney’s brief in opposition to summary judgment do not support the allegation. Plaintiff actually testified as follows:

A.....[Davis] always took pride in saying, “[plaintiff] is dragging at the bottom, as an African American.”

Q. Did he ever make a comment where he said, “[Plaintiff], as an African American”? Did ... Davis ever say that?

A. He might as well.

Q. That’s not my question, ma’am.

A. He might as well. When he looked at me—

Q. Ma’am, please answer my question. Did he ever say—

A. When he yelled at me, he might as well.

In sum, Davis did not utter the words “as an' African American.” Plaintiff simply drew a conclusory opinion based upon his tone of voice and the manner in which he “looked” at her. Such qualities are ambiguous, however. It is entirely possible, for example, that Davis talked to and looked at plaintiff in a disrespectful manner for reasons that were wholly unrelated to her race: e.g., the manner in which she performed (or failed to perform) the duties of her job.

C. Melinda England’s Display of a Confederate Flag Tag on Her Automobile

At some unspecified date in 2007, Team Leader Melinda England gave her sixteen-year-old son permission to decorate the front bumper of her automobile with a tag depicting the confederate flag. Despite plaintiffs complaints to Central Business Office Director Diane Myrick and Manager of Patient Accounts David Davis, defendant took no action against England.

D. Plaintiffs 2007 Annual Performance Evaluation

As part of her duties as a customer service representative, plaintiff was required to call patients in an effort to collect debt. At first, plaintiff consistently-received annual performance evaluation scores of 3.3 (or greater) out of 4: e.g., a rating of 3.32 on December 12, 2003; a rating of 3.32 on November 29, 2004; a rating of 3.37 on November 7, 2005; and a rating of 3.40 on April 10, 2006.

According to plaintiffs August 1, 2007 annual performance evaluation, however, her debt collections were the lowest of defendant’s four “main” customer service representatives: a fact that caused her performance rating to drop to 3.05 — the numerical equivalent of “Meets Expectations.” In an August 1, 2007 e-mail to Manager of Patient Accounts David Davis, plaintiff offered the following theories in an effort to explain the deterioration in her performance:

I received my Performance Evaluation today and there must be some technical problem that we are not aware of. I am making contacts with my patients and requesting money. However, when it is time to pay the customer does not always follow thru.

I am being compared to my other coworkers, but many of them are putting in multiple reminders. The multiple reminders allow it to look like you have made customer contacts in abundance. I am talking to walking in customers, email customers], those customers who call in and those customers that I call to offer them to pay.

I conclude that there maybe a problem in how I am entering my notes on each patient’s account. This is being looked at to resolve the issue.

As a result of the decrease in plaintiffs annual performance evaluation score, she was placed on a ninety-day performance improvement plan. At the conclusion of the plan, Manager of Patient Accounts David Davis informally acknowledged that plaintiff had increased her collections, but did not formally meet with her to discuss her progress. Although Davis alleged that there was no need to hold a formal meeting because the productivity reports compiled during the ninety-day performance improvement period reflected plaintiff’s improvement, plaintiff argued that Davis “ignored” her requests for a meeting and, thus, prevented her from receiving “credit” for her increased collections.

In response to defendant’s motion for summary judgment, plaintiff alleged in her declaration that, “[o]n Dec. 19, 2007, [plaintiff] took a letter to [Kim] Cole, Director of [Human Resources] at [Eliza Coffee Memorial Hospital] East, reported Davis’s refusal to re-evaluate her, and complained that Davis was racially discriminating against her.” An actual review of plaintiffs letter to Cole reveals, however, that it stated only that plaintiff “requested twice for a reevaluation,” but that her improvement “was not recognized enough for a conference.” The letter contained no allegations of racial discrimination against Davis or any other employees.

E. Plaintiffs Reprimand for Insubordination

In an e-mail dated November 7, 2007, Central Business Officer Director Diane Myrick invited central business office employees to apply for permission to work longer hours on the Monday, Tuesday, and Wednesday preceding the 2007 Thanksgiving holiday (i.e., November 19-21), for the purpose of allowing the employees to spend more time with their families over the holiday weekend. Plaintiff responded to Myrick’s e-mail, adding a copy to Manager of Patient Accounts David Davis, with a request to work twelve-hour days on Monday through Wednesday, November 19-21.

Myrick and Davis separately responded to plaintiffs e-mail. Davis initially approved the twelve-hour schedule at 12:14 p.m. One minute later, however, Myrick wrote: “Usually we allow 10 hour workdays but not 12. I am not sure that is productive. What do you plan to work on during that time? You cannot call patients past 8:00 p.m. Do you really think you will be productive all those hours?” Within two minutes, Davis backed out his initial approval of plaintiffs request and endorsed Myrick’s opinion, saying: “I did not at first notice that you were asking for 12-hour days. That is not approved. You can work three 10[-hour days] and then use PTO [i.e., paid time off] for the rest.”

In an effort to address Myrick’s concerns, plaintiff e-mailed her five minutes later, at 12:20 p.m., explaining that she had “a Cash Retriver [sic] follow-up file to work on,” plus “accounts ready to be collected on that require some follow-up as well, but will not necessary [sic] require a call.” Five minutes after that, plaintiff again e-mailed Myrick to complain that “Dave approved at first. However, after your reply, he refused.” Plaintiff also requested that Myrick “send me an o.k. or a denial o.k. attached to my last e-mail explaining how I will be productive on my work.” Myrick responded that she “would prefer” for plaintiff to only work ten-hour days.

Davis and Myrick testified that they met with plaintiff on November 9, 2007, for the purpose of explaining their decision. At her deposition, plaintiff testified that she did not “remember” the meeting, but she refused to testify that, if Davis and Myrick stated that such a meeting had occurred on November 9th, then they were not telling the truth. In her declaration, however, plaintiff explicitly denied that such a meeting took place.

In any event, on November 20, 2007, plaintiff worked 11.5 hours. One week later, she was reprimanded for insubordination. Defendant did not permit any other central business office employees to work twelve-hour days during the week of the 2007 Thanksgiving holiday. Davis and Myrick were not aware of any other employees who ignored a management instruction with regard to their work schedules. On the other hand, plaintiff alleged that Customer Service Representative Carlette Robinson violated Davis’s instructions by reporting to work in January of 2010 on a date that the office was closed, but was not reprimanded. That fact does not advance plaintiffs interests in this case, however, because Robinson also is African-American.

F. Plaintiffs Reprimand for Improper Collection Practices

Plaintiff was reprimanded for improper collection practices on December 19, 2007. In a detailed written description of the reprimand, defendant reaffirmed that all of the employees in the customer service department had “been instructed not to claim collections for their productivity report until the dollars collected have-been posted.”

When defendant performed an audit of plaintiffs accounts as part of a regular productivity review, it discovered that plaintiff had claimed six accounts as “collected” before payments were posted. For two of those accounts, it was “possible that the credit card posting was late.” Even so, the other two accounts were never paid. Plaintiff also claimed that a seventh account had been “collected” for an amount that was twice the actual amount owed.

During their respective depositions, plaintiff and Manager of Patient Accounts David Davis each testified that they were not aware of any other employees who had claimed accounts as “collected” before the payments were posted. In her declaration, however, plaintiff alleged just the opposite, and asserted that all customer service representatives did so, because credit card payments sometimes posted late. She also alleged that white customer service representatives who did so were not reprimanded.

G. Plaintiffs 2008 Annual Performance Evaluation

Manager of Patient Accounts David Davis gave plaintiff a performance rating of 3.15 out of 4 on December 18, 2008 — the numerical equivalent of her 2007 rating, “Meets Expectations.”

H. Plaintiffs Application for the Position of Non-Medicare Revenue Integrity Specialist

After Jennifer Pate resigned the position of “non-Medicare revenue integrity specialist,” defendant posted an opening for the position. Defendant’s Employee Handbook required job postings to “remain on the board for at least five days, including weekend days”: in other words, ■ five calendar days. Because the “non-Medicare revenue integrity specialist” position was posted on July 30, 2009, the- position had to remain open until August 4, 2009.

Defendant received applications from two African-American employees in response to its job posting (plaintiff and Tammy Simmons) and three white employees (Belinda Gotcher, Melissa Baskins, and Belynn “Ann” Heathcoat). Only one of those five employees submitted her application by August 4th: i.e., Tammy Simmons, who applied on August 3rd. Belinda Gotcher and Melissa Baskins submitted their applications on August 5th: one day late. Plaintiff and Ann Heath-coat submitted their applications on August 6th: two days late. (Plaintiff was not present to confirm when the human resources department actually received her application.)

The parties have not provided the specific date on which this selection decision was made, but a “decision to fill a position [generally was] subject to being made at the end of the 5th day of posting.” In any event, Central Business Office Director Diane Myrick and Manager of Patient Accounts David Davis awarded the position to Melissa Baskins, the white female who submitted her application one day late. Human Resources employee Jeannie Kilpatrick sent identical e-mails to plaintiff and Heathcoat on August 11, 2009, stating that their applications were received after the position had been filled. Davis and Myrick testified that they were not aware of plaintiff and Heathcoat’s applications at the time when they awarded the position to Baskins.

I. Plaintiffs Reprimand for Violating Patient Confidentiality

Plaintiff was trained on patient confidentiality and given an employee handbook containing policies that prohibited disclosure of patient information. One event described in the evidence concerns a patient who returned an itemized bill to defendant because the bill that had been mailed to her pertained to another patient. Manager of Patient Accounts David Davis observed that plaintiffs handwriting appeared on the envelope in which the bill had been mailed. Davis also testified that, “[w]hen he spoke to [plaintiff] about it, [she] told [him] that that was her handwriting on the envelope.” Plaintiffs declaration contradicts that assertion, however, and says that her “handwriting never appeared on the envelope.” Further, during her deposition plaintiff blamed the incident on Customer Service Representative Shirley Cross, who also worked on the patient’s account. In response to defendant’s motion for summary judgment, plaintiff mischaracterized David Davis’s testimony and argued that Davis “admitted he never determined ‘for sure’ that it was [plaintiff] who sent one patient’s account information to another patient.” In fact, however, Davis testified as follows:

A. An itemized bill went out — was sent out by [plaintiff]. We got a call saying, “This is not mine,” from the person that received it, and we asked them to send it back to us, which they did, and they sent it back to us also with the envelope that they were sent it in, and it was a bill that [plaintiff] had sent out.

Q. All right. And what did [plaintiff] tell you about that?

A. What [plaintiff] said was that other people had handled the account also. Other people had handled the account, but [plaintiff] was the one that sent out the itemized bill. It appeared that [plaintiff] had gotten more than one request for one that day and had put the wrong request in the wrong envelope.

Q. You say it appeared that way. Did you ever determine whether that was the case or not?

A. Well, she had gotten more than one request that day. Did I determine that for sure? No, but it was determined that [plaintiff] was the one who sent out the itemized bill.

In sum, Davis testified clearly and repeatedly that plaintiff was the one who mailed an itemized bill to the wrong patient. What Davis did not determine “for sure” was the chain of events that caused plaintiff to misaddress the envelope in which the bill was mailed. Regardless of the cause of the error, plaintiff was reprimanded for violating defendant’s patient confidentiality policy on October 29, 2009.

Plaintiff alleged that white “casual” employee Gayle Burgess and African-American Customer Service Representative Carlette Robinson each sent itemized bills to the wrong patients, but were not disciplined. (The specific duties of a “casual” employee depend upon defendant’s needs. For example, when a full-time employee takes a leave of absence, defendant may appoint a “casual” employee to temporarily fill the position.)

J. Plaintiffs Allegations that David Davis Made a Racist Statement

Manager of Patient Accounts David Davis allegedly yelled at plaintiff for arriving late to a company meeting on January 12, 2010. Plaintiff testified that he said: “You hurry up. You need to get in here. As African-Americans, y’all are always running late. You just need to hurry up and get on in here because class has already started.” Davis denied making the comment about “African-Americans .... always running late.” (See also the discussion in Part III(B), supra.)

K. Plaintiffs 2009 Annual Performance Evaluation (See also Parts III(D) and (G), supra, discussing plaintiffs 2007 and 2008 annual performance evaluations)

Team Leader Melinda England allegedly became plaintiffs immediate supervisor in late 2009 or early 2010. Plaintiffs declaration states: “All of my performance evaluations were extremely high until Melinda England became one of my supervisors in late 2009 and early 2010. My performance evaluations did not drop below a rating of 3 until Melinda England became one of my supervisors.”

Manager of Patient Accounts David Davis gave plaintiff an overall performance rating of 2.97 out of 4 on March 23, 2010, including a 2.00 (the numerical equivalent of “Requires Improvement”) in four categories of job functions. In the “manager narrative” section, Davis explained that the low ratings were based on a productivity comparison between plaintiff and defendant’s other customer service representatives.

Davis attached the productivity reports showing the number of accounts that each customer service representative worked per hour, and the amount of time that each representative spent “off line.” The reports showing the number of accounts worked per hour were prepared by Recita Flie, another African-American employee. Those reports included defendant’s four “main” customer service representatives: i.e., plaintiff; Carlette Robinson; Rose Hale; and Shirley Cross. Two of the four (plaintiff and Robinson) were African-American. The reports also included two employees who performed both customer service and cashier duties (Belinda Gotcher and Shirley Brannon), one of whom (Brannon) was African-American. The reports showing the amount of time spent “off line” were pulled from the computer system that enabled employees to work on patient accounts.

According to plaintiff, the performance evaluation was a “sham,” because her initials were “forged” in the “signatures” section of the contested document. Even if that be so, plaintiff admitted that she met with Manager of Patient Accounts David Davis on the date of the evaluation, and admitted to writing that she “d[id] not agree with the evaluation” in the “comments” section of the document. That statement was followed by the assertion that plaintiff sometimes had fewer callers and more walk-in customers, the argument that some patients required more service time than others, and the question: “Do we really care about our customers?”

Further, plaintiff believed thát Davis should not have “compared [her,] as an African American[,] to white employees.”

Plaintiff also argued that the productivity reports were “incorrect,” because she considered herself equally as productive as defendant’s other customer service representatives based on her ability to overhear (¿a, eavesdrop on) their telephone conversations with patients. Plaintiff testified that Rose Hale and Shirley Cross (the two white customer service representatives) were productive, but she was not aware of whether Carlette Robinson (the African-American representative) was productive. When asked about Robinson, plaintiff disparaged her in racial terms:

Q. ... Carlette, Robinson, she was an African-American customer service rep, wasn’t she?

A. That’s correct, and she was one who wanted to be white. She was an employee of [Manager of Patient Accounts David Davis] who wanted to do and be white, and if you can read even in the Birmingham papers and all papers, there is that discussion [about the difference between] our black versus your black.

Q.... What I want to know is do you know whether Ms. Robinson received good performance reviews?

A. What I do know was Ms. Robinson was/is a token employee for Dave Davis.

Plaintiff also attributed the difference between her productivity ratings and those of her co-workers to the failure of preregistration clerks to properly prepare her accounts for processing. Nevertheless, plaintiff also acknowledged: that pre-registration clerks had overlapping responsibilities; that pre-registration clerks serviced all accounts; and that, if one preregistration clerk was absent, another clerk performed the absent clerk’s duties, as well as her own. Likewise, Central Business Office Director Diane Myrick and Manager of Patient Accounts David Davis testified that the quality of the performance of pre-registration clerks (or the lack thereof) equally impacted the accounts of all customer service representatives.

Further, plaintiff alleged that she was placed at a competitive disadvantage compared to her white coworkers because Myrick and Davis did not permit her to work from home, and because her coworkers did not inform her of changes to defendant’s collection procedures. Plaintiff argued that “Melinda England, Dave Davis, and Diane Myriek singled [her]-out as an African-American,” and that she “complained to Melinda England, Dave Davis, and Diane Myriek that [she] was being singled out as an African-American.” (Plaintiff did not explain why she allegedly complained to the very employees whom she accused of the discriminatory conduct.)

Plaintiff was placed on a ninety-day performance improvement plan, effective March 23, 2010. One month later, Manager of Patient Accounts David Davis and Team Leader Melinda England met with plaintiff to review her performance. Davis informed plaintiff that her productivity had not improved, that she had failed to service an account, and that he had witnessed her reading a novel at work. During her deposition, plaintiff denied that she was less productive than her coworkers, and that she failed to service the account in question. She also claimed that Davis had not seen her reading a novel, but an employee reference manual.

Plaintiff was not aware of any other employees who were disciplined for failing to service an account, but she alleged that, in 2008, Manager of Patient Accounts David Davis witnessed a white “casual” employee whose first name is “Baylee” (and whose last name plaintiff does not know) reading a magazine, and that “Bay-lee” was not reprimanded. Nevertheless, plaintiff acknowledged that she had not seen “Baylee’s” personnel file, and was not present for the reprimands of other employees.

L. Allegation That Plaintiff Misquoted the Amount of a Patient’s Debt

Team Leader Melinda England discovered that someone misquoted the amount of a patient’s debt in response to an inquiry on May 10, 2010. Manager of Patient Accounts David Davis reviewed the computer records for the patient’s account and observed that “casual” employee Kayla Aldridge (who was performing the duties of a pre-registration clerk) and plaintiff had each recorded electronic “notes” about their work in the computer data files of the account.

Specifically, Kayla Aldridge had written a “note” stating: “It looks like [the amount of the debt] maybe $12,000.” It was plaintiffs duty as a customer service representative to verify that amount with defendant’s employee Shauna Brink, Team Leader Melinda England, Manager of Patient Accounts David Davis, or Central Business Office Director Diane Myrick. Based on plaintiffs electronic “notes,” Davis concluded that she had quoted the unverified $12,000 amount to the patient.

As a result of the incorrect quotation, the patient overpaid her bill by $9,480. Accordingly, Team Leader Melinda England e-mailed plaintiff instructions to “call [the] patient [and] apologize and explain that she will receive [a] refund check for the difference.” Plaintiff did as England asked. Plaintiff testified that she received a disciplinary write-up. (Assuming the write-up still exists, it has not been submitted into evidence.)

Plaintiff blamed the incorrect quotation on six white coworkers, none of whom were disciplined for the incident. At her deposition, plaintiff alleged that the quotation “came from [Team Leader] Melinda England, Rose Patterson ... Shauna Brink[,] and Lindsey Garner.” In her declaration, plaintiff asserted that the quotation “was actually given to the patient by Belinda Gotcher, Kayla Aldridge, and Shanna [sic] Brink.” (Patterson, Brink, Gardner, Gotcher, and Aldridge appear to be “casual” employees.) Further, plaintiff testified that Lindsey Gardner misquoted the amount of a patient’s debt on another occasion in 2010, but was not disciplined.

M. Allegation that Plaintiff Discussed the Patient Account of a Coworker’s Husband at a Departmental Staff Meeting

Some customer service representatives had relatives who were patients at Russell-ville Hospital. In order to prevent those employees from violating the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (“HIPAA”), defendant prohibited those representatives from handling their relatives’ patient accounts.

Plaintiff alleged that Belinda Gotcher (who performed both customer service and cashier duties) had disobeyed defendant’s policies by marking her husband’s account as “cleared” of a past-due debt. When an account is “cleared,” it does not necessarily mean that it has been paid in full or the debt forgiven; instead, the term indicates that the patient has been called, and that defendant has received a payment, a promise to pay, or a refusal to pay.

Plaintiff spoke about the account of Gotcher’s husband during a customer service meeting on May 17, 2010. The meeting was attended by Manager of Patient Accounts David Davis, Team Leader Melinda England, Customer Service Representatives Carlette Robinson and Shirley Cross, and, possibly, by other customer service employees. The parties offered two different versions of what occurred. Davis alleged that, during the “open meeting,” plaintiff asked whether Gotcher “should ... have touched her own husband’s account.” Davis answered that the meeting was not the proper forum to discuss that issue.

In contrast, plaintiff alleged that, during the open meeting, she asked only whether “we still cleared accounts.” Then, as her coworkers “were going out of the room,” she asked Davis whether employees should access their family members’ accounts, and suggested that Davis speak to Gotcher about the matter. Plaintiff denied that Davis told her that the meeting was not the proper forum to discuss the Gotcher account.

Gotcher, who did not attend the meeting, learned about plaintiffs statements from others. Plaintiff contends that Gotcher heard a false version of the statements from Central Business Officer Director Diane Myrick. However, the exhibit plaintiff cites does not support that contention, because it is merely a page from a “Manager File” that discusses the incident and bears Myrick’s signature. There is no evidence that the file was shared with Gotcher. In any event, Gotcher complained about plaintiff to Myrick and Davis; Myrick instructed plaintiff to apologize to Gotcher; and plaintiff did as she was directed.

Myrick and Davis alleged that plaintiffs conduct was wrong for two reasons. First, according to David Davis, plaintiff violated the HIPAA rule “which says that unless you have a business need to know about an account, you are not to look at an account or discuss one, and in that situation, no one in that room had a business need to know about that situation.” Second, and again according to David Davis, plaintiff “embarrassed [Gotcher] in front of her fellow employees.” In support of that belief, Davis observed that plaintiff could have asked the same question about handling the account of a spouse without identifying Gotcher or her husband by name.

In any event, Gotcher was not reprimanded for “clearing” her husband’s account. Plaintiff alleged that “[t]he real problem was [that Gotcher] had been caught ‘clearing’ her husband’s account, but because [Gotcher] is white, [plaintiff], [who is] black, was made a scapegoat to cover for [Gotcher].”

N. Allegation That Plaintiff Hung Up on a Patient in the Middle of a Conversation

On May 18, 2010 — the day after the staff meeting discussed above — a patient complained that an employee hung up on him in the middle of a conversation. After reviewing the computer records for the patient’s account, Manager of Patient Accounts David Davis determined that plaintiff was the only customer service representative who spoke to the patient on that day.

Plaintiff was not aware of the exact content of the patient’s complaint with regard to the telephone call. Even so, plaintiff denied that she hung up on a patient in the middle of a conversation, and blamed the incident on unknown individuals employed by unnamed outside debt collection agencies.

O. Allegation that Plaintiff Discussed the Patient Account of a Coworker’s Husband in a Group E-mail

On May 19, 2010 — two days after the departmental staff meeting during which plaintiff discussed the issue of Belinda Gotcher’s act of allegedly “clearing” her husband’s account — plaintiff sent an e-mail to approximately twelve people that again discussed the account of Gotcher’s husband, and, included the names of both Belinda Gotcher and her husband. The recipients of the e-mail included Central Business Office Director Diane Myrick, Manager of Patient Accounts David Davis, defendant’s employee Shauna Brink, and all members of the Revenue Integrity Specialist Team and Central Business Office Management Team.

Like the comments attributed to plaintiff at the May 17th customer service staff meeting, plaintiffs May 19th e-mail addressed the issue of whether representatives were supposed “to work up family members^] accounts.” Central Business Office Director Diane Myrick and Manager of Patient Accounts David Davis deemed the email a second violation of HIPAA privacy rules, because plaintiff could have asked her question about the duties of customer service representatives without using the names of Gotcher and her husband.

P. Plaintiffs Suspension and Termination

On May 21, 2010, four days after plaintiff sent the foregoing e-mail, Central Business Office Director Diane Myrick, Manager of Patient Accounts David Davis, and Human Resources Director Cheryl Lee jointly made the decision to suspend plaintiff. To reach her decision, Cheryl Lee relied: on conversations with plaintiff, Myrick, Davis, Team Leader Melinda England, and Human Resources Coordinator Kim Cole; on documentation from Myrick, Davis, England, and defendant’s employee Melinda Gotcher; and on notes from the meeting at which plaintiff allegedly discussed the confidential patient information of Gotcher’s husband.

A notice of suspension was issued to plaintiff on May 21, 2010. In the spaces provided to explain the reasons for that action, “confidentiality” and “performing poor work” were marked. Specifically, the notice stated:

[Plaintiff] committed a HIPAA violation by discussing an employee’s husband’s account verbally in a meeting and by e-mail to persons without a business need to know. [Plaintiff] has also shown no improvement through her Performance Improvement Evaluation period.

Suspension beginning today until HI-PAA violation is investigated. Productivity and patient response will be taken into consideration.

In the section entitled “employee comments,” plaintiff responded:

Didn’t hang up on Mr. John Doe ... He continued to talk about his health situation. I listen but as I offered FC [presumably, financial counseling] and at the end I concluded the call. I did not quote wrong price to pt. [presumably, patient]. Several clerks spoke to pt. I should not have given acct. [presumably, account] name. I only did because at other times the acct. names have been brought by the group.

After meeting with plaintiff to discuss her suspension, Central Business Office Director Diane Myrick and Manager of Patient Accounts David Davis recommended to Human Resources Director Cheryl Lee that plaintiff be fired. Myrick and Davis identified four reasons in favor of termination: i.e., plaintiffs failure to improve her productivity while she was on a performance improvement plan; her discussion of the patient account of a coworker’s husband in a departmental staff meeting and subsequent e-mail; the fact that she hung up on a patient in the middle of a conversation; and the fact that she misquoted a patient’s debt by a significant amount.

Upon receiving the recommendation of termination, Human Resources Director Cheryl Lee reviewed: plaintiffs personnel file; documentation from Diane Myrick and David Davis; and information from Team Leader Melinda England and defendant’s employee Belinda Gotcher. (The information provided by England consisted of e-mails regarding the allegations that plaintiff misquoted the amount of a patient’s debt and failed to service an account. England’s e-mails were included in documentation given to Lee by Davis and placed in plaintiffs personnel file.)

Human Resources Director Cheryl Lee approved the recommendation of Myrick and Davis that plaintiff be terminated on May 27, 2010. Other than drafting the e-mails given to Lee by Davis, Melinda England did not participate in Lee’s decision-making process.

Q. Plaintiffs Appeal of the Termination Decision

Plaintiff appealed her termination in accordance with defendant’s “five-step problem-solving procedure,” which was described in defendant’s Employee Handbook as follows:

Step 1: An Employee should make every reasonable effort to work out with their immediate supervisor any grievance or matter that merits discussion. This is most successful when the matter is fresh in the minds of everyone; therefore, a written grievance must be presented within five working days after the incident. The supervisor will discuss the complaint with the employee within three workdays or within a reasonable time from the time he/she is made aware of the complaint. The supervisor will reply to the employee within five workdays or a reasonable time, stating the action taken on the complaint.

Step 2: If after receiving the answer from the supervisor, the matter is not resolved, the employee should submit a written complaint to the Department Manager and the Human Resources Director. This contact must be made within three workdays after receiving the decision of the supervisor. Within five working days or a reasonable time from receiving the appeal from the first step, the Department Manager and the supervisor will meet the employee in an effort to resolve the complaint. A written reply will be given by the Department Manager within five days or a reasonable time following the meeting.

Step 3: If after receiving the reply from the Department Manager, the matter is not resolved, the employee should submit a written complaint to the appropriate Administrative representative, the Facility Administrator and the Human Resources Director within three working days after receiving the reply from the Department Manager. Within ten workdays after receiving the complaint, the appropriate Administrative representative will meet with the employee and the appropriate supervisors. A written reply will be given to the employee within ten workdays or a reasonable time-from the review of the complaint.

Step 4:- If after receiving the response from the Administrative Representative the matter is not resolved; the employee should submit a written complaint-to the Chief Operating Officer (COO) or Chief Financial Officer (CFO), whichever is applicable, within three working days after receiving the reply from the Administrative Representative. Within ten working days after receiving the complaint, the COO/CFO will meet with the employee and the appropriate supervisors to review the complaint. A written reply will be given to the employee within ten working days or a reasonable time from the review of the comp [sic].

Step 5: Appeals following the steps outlined above may be made by submitting the complaint, in writing, within three working days, to the President/Chief Executive Officer (CEO) and the Human Resources Director. Within ten working days or a reasonable time after receiving the complaint, the President/CEO will review the complaint with the employee and the appropriate supervisors. A written r,eply will be given to the employee within ten working days or within a reasonable time from the review of the complaint. The- decision of the President/CEO shall bé the final decision.

Note: If any of the above listed steps are not applicable to your reporting structure, proceed to the next appropriate step to begin the problem solving procedure.

Defendant was in the process of selling the hospital during plaintiffs pursuit of her appeal rights. Even so, plaintiff and defendant completed all except the fifth step of the “problem-solving procedure”: ie., a meeting with the president or chief executive officer. Human Resources Director Cheryl Lee sent plaintiff a letter upholding the termination decision in the absence of such a meeting on July 27, 2010, saying that

when you and I last talked on the telephone in June, 2010, the hospital was in the final stages of being sold to Regional Care Hospital Partners. At that time, [Interim CEO Jody] Pigg was heavily involved in the process and was frequently out of town and unavailable locally in completion of the sale. Mr. Pigg resigned as CEO of the hospital at the end of June and is no longer employed by the hospital in that position. In light of Mr. Pigg’s departure and the change of ownership, we are unable to proceed further.

After further review and consideration of your appeal, I am supportive of the prior decision to terminate your employment. Accordingly, the problem solving process is concluded at this step.

Plaintiff alleged that defendant “replaced [Interim Chief Executive Officer] Jody Pigg,” and that plaintiff “could have had her right to appeal honored.” In support, plaintiff offered a string of citations, none of which stated that Pigg was “replaced,” as opposed to voluntarily resigning his position.

R. Plaintiffs Replacement

Defendant replaced plaintiff with Jerica Pace, a white female. Pace was herself fired on October 12, 2010, however, because she was not able to meet productivity requirements.

IV. PLAINTIFF’S RETALIATION CLAIM

Title VIPs “opposition clause” protects an employee who “oppose[s] any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a); see also Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir.2000).

Prior to commencing a lawsuit based upon any portion of Title VII, a plaintiff must first file an administrative charge of discrimination with the EEOC. See, e.g., Gregory v. Georgia Department of Human Resources, 355 F.3d 1277, 1279 (11th Cir.2004) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir.1970)). Defendant’s motion for summary judgement asserts that plaintiff failed to exhaust her administrative remedies with respect to her retaliation claim because, when filing her EEOC charge of discrimination, plaintiff did not check the box for retaliation, and did not allege that defendant had retaliated against her for engaging in protected conduct.

In response, plaintiff argues that she stated a claim for retaliation in her EEOC intake questionnaire, While it is true that plaintiff marked the box for retaliation on the questionnaire, she did not describe the protected conduct in which she allegedly had engaged, and for which defendant allegedly retaliated against her, and she did not indicate the dates on which she allegedly engaged in such protected conduct.

The Eleventh Circuit has held that “a verified intake questionnaire that includes the basic information suggested by 29 C.F.R. § 1601.12(a) may constitute a charge for purposes of ... Title VII[.]” Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 (11th Cir.2001) (emphasis and alteration supplied). The regulatory provision cited in that case, 29 C.F.R. § 1601.12(a), requires, among other things, “[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3) (alteration supplied). Thus, plaintiff failed to exhaust the administrative remedies for her retaliation claim.

To overcome that defect, plaintiff argues that she brings her complaint under both Title VII and 42 U.S.C. § 1981. Section 1981 contains no administrative exhaustion requirement. Ho