[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14514 ELEVENTH CIRCUIT
AUGUST 31, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00602-CV-2-WHA-CSC
ROGER REEVES,
Plaintiff-Appellant,
versus
DSI SECURITY SERVICES, INC.,
NUCOR (American Buildings),
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 31, 2010)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Roger Reeves, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of DSI Security Services, Inc. and American Buildings
Company (ABC) in his employment discrimination lawsuit brought under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 3(a), and under 42
U.S.C. § 1981. Reeves contends that the district court erred by granting summary
judgment to the defendants on his hostile work environment and retaliation claims.
He also argues that the district court abused its discretion in denying his fifth
motion to amend his complaint. Finally, Reeves challenges the district court’s
referral of his case to a magistrate judge for a ruling on his motion to amend his
complaint and for a report and recommendation on the defendants’ motion for
summary judgment.
I.
We review de novo a grant of summary judgment, drawing all reasonable
inferences in favor of the non-moving party. Brown v. City of Huntsville, Ala.,
608 F.3d 724, 728 n.1 (11th Cir. 2010). We may affirm the district court’s
decision on any ground supported by the record. Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007).
Reeves brought racial discrimination claims under Title VII and § 1981, and
the same analytical framework applies to both. Bryant v. Jones, 575 F.3d 1281,
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1296 n.20 (11th Cir. 2009). To establish a claim based on allegations of a hostile
work environment, a plaintiff must show:
(1) that he belongs to a protected group; (2) that he has been subject to
unwelcome harassment; (3) that the harassment must have been based
on a protected characteristic of the employee, such as [race]; (4) that
the harassment was sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive
working environment; and (5) that the employer is responsible for
such environment under a theory of vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). To
establish the “severe or pervasive” element, a plaintiff must show not only that he
subjectively perceived the working environment to be abusive but also that a
reasonable person would view the environment as hostile and abusive. Id. at 1276.
In evaluating whether the harassment was objectively severe, we look at the
totality of the circumstances and consider, among other things, “(1) the frequency
of the conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.” Id. The conduct is considered cumulatively instead of in isolation.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en
banc). We do not consider statements or conduct that are unrelated to the
defendant’s race. See Baldwin v. Blue Cross/Blue Shield of Alabama 480 F.3d
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1287, 1301–02 (11th Cir. 2007) (“Title VII does not prohibit profanity alone,
however profane. It does not prohibit harassment alone, however severe and
pervasive. Instead, Title VII prohibits discrimination, including harassment that
discriminates based on a protected category” such as race.).
Reeves has failed to show that he was subjected to a working environment
that a reasonable person would find to be hostile and abusive. Reeves complains
that the defendants left him “hanging on the telephone” when he became ill at work
and called for help. He also asserts that the defendants required him to drive to
Dothan, Alabama for a reprimand after he hit a parked car and did not immediately
report the accident. Reeves did not present any evidence, however, that the
defendants’ actions were racially motivated.
Reeves also refers to these other incidents: on two particular days DSI
assigned overtime to white employees instead of to him; an ABC employee asked
Reeves to check on a driver named “Coon” and a truck with the name “Crowley”
on its side; the same ABC employee handed Reeves a package with the name
“Boykin” on it. 1 Those allegations, which we accept as true for purposes of
summary judgment, fall far short of establishing severe or pervasive racially
discriminatory conduct. Moreover, Reeves failed to show how any of the instances
1
Reeves argues that those incidents constituted implied racial epithets.
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of alleged racial harassment affected his ability to perform his job. Because
Reeves failed to demonstrate that he suffered severe or pervasive racial harassment
that affected the terms and conditions of his employment, the district court
properly granted summary judgment in favor of DSI and ABC on Reeves’ hostile
work environment claim.2
II.
Reeves also contends that the defendants retaliated against him. To establish
a prima facie case of retaliation under Title VII or § 1981, a plaintiff must prove
that (1) he engaged in statutorily protected activity; (2) he suffered a materially
adverse action; and (3) there was a causal connection between the protected
activity and the materially adverse action. Goldsmith v. Bagby Elevator Co., 513
F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 126 S.Ct. 2405, 2410–16 (2006).). A materially adverse
action is one that “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68, 126
S.Ct. at 2415 (quotation omitted). “[P]etty slights, minor annoyances, and simple
2
Reeves’ brief discusses a number of additional incidents of alleged harassment, some of
which he included in his fifth motion to amend his complaint. As we will explain later in this
opinion, the district court properly denied that motion, and we do not address issues or
arguments raised for the first time on appeal. See Access Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004).
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lack of good manners” generally do not rise to the level of materially adverse
actions. Id. at 68, 126 S.Ct. at 2415.
To establish that the protected conduct and the materially adverse action
were not wholly unrelated, a plaintiff must show that the decisionmaker was aware
of the protected conduct at the time of the adverse action. See Goldsmith, 513 F.3d
at 1278; see also Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th
Cir. 2000) (“A decision maker cannot have been motivated to retaliate by
something unknown to him.”). Close temporal proximity between the protected
activity and the adverse action may be enough to show that the two were not
wholly unrelated. Thomas, 506 F.3d at 1364. In the absence of other evidence
tending to show causation, however, a “three to four month disparity” between the
protected activity and the adverse action is “not enough” to show causation. Id.
Reeves did engage in statutorily protected conduct by filing a charge with
the EEOC. However, all but one of the actions that Reeves viewed as being
retaliatory were not materially adverse and the other one was not causally related
to any protected conduct. Reeves was denied opportunities to work overtime in
November 2006, July 2007, and November 2007, but DSI did not guarantee
overtime to its employees, and Reeves was allowed to work overtime on other
occasions. Requiring Reeves to drive to Dothan to receive a reprimand was at
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most a “minor annoyance[ ]” that did not rise to the level of a materially adverse
action. See Burlington Northern, 548 U.S. at 68, 126 S.Ct. at 2415. Ignoring
Reeves’ telephone calls when he became ill at work is at most a “petty slight” and
is not conduct that would deter a reasonable person from filing a charge with the
Equal Employment Opportunity Commission. Id. Reeves does not contend that he
was disciplined after he left work to seek emergency medical treatment or that he
suffered any loss in pay. Also, even if Reeves did find offensive an ABC
employee’s remarks about a driver named “Coon,” a “Crowley” truck, and a
“Boykin” package, those remarks do not rise to the level of an adverse action.
Finally, Reeves failed to show any causal connection between his protected
activities and DSI’s delay in providing him with the enrollment information and
forms for the company’s 401k program. Even if a delay in providing those forms
were considered a materially adverse action, Reeves failed to show that the
supervisors from whom he requested that information knew that he had filed a
charge with the EEOC. Because Reeves failed to establish a prima facie case of
retaliation, the district court properly granted summary judgment in favor of DSI
and ABC.3
3
Because the district court correctly concluded that Reeves failed to establish a prima
facie case of retaliation, we need not address the question of whether ABC was Reeves’
employer for Title VII purposes. In addition, we need not consider the defendants’ arguments
that some of Reeves’ claims were barred by res judicata or by a failure to exhaust administrative
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III.
We review a district court’s denial of a motion to amend the complaint only
for an abuse of discretion. Smith v. School Bd. of Orange County, 487 F.3d 1361,
1366 (11th Cir. 2007). Federal Rule of Civil Procedure 15(a)(2) provides that
leave to amend should be freely given “when justice so requires.” Even so, a court
may deny leave to amend if the party seeking it acted with undue delay or if the
amendment would cause undue prejudice to the adverse party. Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962).
Reeves did not file his fifth motion for leave to amend his complaint until
after the magistrate judge recommended that the district court grant the defendants’
summary judgment motions. The district court had already given Reeves multiple
opportunities to amend his complaint, and allowing him to add more claims and
new factual allegations at that late stage in the proceedings would have unduly
prejudiced the defendants. Therefore, the district court did not abuse its discretion
by denying Reeves’s fifth motion to amend his complaint.
IV.
A district court has statutory authority to refer a summary judgment motion
to a magistrate judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B);
remedies.
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see also Roell v. Withrow, 538 U.S. 580, 585, 123 S.Ct. 1696, 1700–01 (2003)
(“[N]onconsensual referrals of pretrial but case-dispositive matters under §
636(b)(1) . . . leave the district court free to do as it sees fit with the magistrate
judge’s recommendations. . . .”). A district court may also designate a magistrate
judge to rule on certain non-dispositive pretrial motions, such as a motion to
amend a complaint. See 28 U.S.C. § 636(b)(1)(A). The district court need not
obtain the consent of the parties before assigning these matters to a magistrate
judge. See id. § 636(b)(1)(B)–(C).
Even though Reeves had requested that no magistrate judge be assigned to
his case, the district court had the authority to refer to a magistrate judge Reeves’
motion to amend his complaint. The district court also properly directed that judge
to prepare a report and recommendation on the defendants’ motions for summary
judgment.
AFFIRMED.
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