Case: 13-14477 Date Filed: 04/02/2015 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14477
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cv-02587-MSS-TBM
ROULA BAROUDI, M.D.,
Plaintiff-Appellant,
versus
SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 2, 2015)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 13-14477 Date Filed: 04/02/2015 Page: 2 of 14
Plaintiff Roula Baroudi appeals the district court’s order granting summary
judgment to her employer, the Secretary of the Department of Veterans Affairs
(“Defendant”), on her claims of (1) retaliation and (2) a retaliatory hostile work
environment, arising under Title VII of the Civil Rights Act (“Title VII”), 42
U.S.C. § 2000e-3(a). After careful review, we affirm.
I. Background
In 2001, Plaintiff, a Syrian-born Muslim woman, began working as a doctor
in the infectious disease section of Defendant’s Bay Pines medical facility. Dr.
David Johnson, the chief of the infectious disease section, was Plaintiff’s
supervisor. Dr. Lithium Lin, the Chief of Medicine at Bay Pines during the
relevant time period, was Johnson’s supervisor and Plaintiff’s second-level
supervisor. Pat Ellis, Elizabeth Simoes, and Jacqueline Walsch worked as nurse
practitioners in the section. Due to interpersonal issues, Ellis and Simoes primarily
worked with Johnson while Walsch worked with Plaintiff.
Plaintiff testified that her relationship with Johnson was “courteous” and
“respectful” prior to 2010, when she filed the first of several EEO complaints.
However, she later described Johnson as showing subtle hostility toward her within
a few months of her joining the infectious disease section. Specifically, Plaintiff
said that Johnson had not made her feel welcome in the section, did not
acknowledge her as a doctor, and made decisions without consulting her.
2
Case: 13-14477 Date Filed: 04/02/2015 Page: 3 of 14
Likewise, Johnson described his relationship with Plaintiff as “somewhat strained”
from the beginning.
A. Plaintiff’s First EEO Complaint
In a November 2009 performance evaluation, Johnson gave Plaintiff a “high
satisfactory” rating for the preceding year. The 2009 rating was lower than the
“outstanding” designation Plaintiff had received in the two prior years, and
resulted in a smaller salary increase. After complaining to Lin, who told Plaintiff
that he could not do anything about the rating, Plaintiff filed an EEO complaint in
January 2010. In her complaint, Plaintiff alleged that Johnson had discriminated
against her on the basis of her gender, national origin, and religion.
According to Plaintiff, Johnson’s mistreatment of her “got much worse”
after she filed the EEO complaint. Johnson became hostile toward Plaintiff, would
not talk to her, and sent embarrassing messages to her through nurses. In addition,
Plaintiff claims that other employees in the section started to avoid her after she
filed the complaint. As a result, Plaintiff became severely stressed at work and
withdrew her EEO complaint in March 2010.
B. Plaintiff’s Second EEO Complaint
On March 18, 2011, Plaintiff filed a second EEO complaint, alleging that
Johnson had discriminated against her on the basis of her gender, national origin,
and religion, and retaliated against her based on her prior EEO activity. In her
3
Case: 13-14477 Date Filed: 04/02/2015 Page: 4 of 14
second complaint, Plaintiff cited sixteen incidents that allegedly occurred between
February 2010 and March 2011 as evidence of the discrimination and retaliation
she experienced. For example, Plaintiff claimed that shortly after she filed her
complaint, Johnson spoke to her in a threatening manner, raised his voice, and
stared at her during a conversation about his plan to take away her Tuesday
morning clinic. Plaintiff also claimed that her locked office was searched, and her
papers were packed and taken away, while she was on annual leave in July 2010.
When Plaintiff returned, Johnson told Plaintiff, in a threatening tone, that it was
illegal and violated hospital policy for her to leave patient information lying
around in her office.
Other incidents cited in support of Plaintiff’s second EEO complaint
included Johnson: downgrading Plaintiff’s performance rating in December 2010
in a review that included “intimidating” comments suggesting that Plaintiff should
have more opportunities to instruct residents and establish her own research
program, harassing Plaintiff via email about a “missing” camera he knew she
properly possessed, removing a program from Plaintiff’s computer, speaking to
Plaintiff in a “very rude and very demeaning, very belittling manner,” forcing
Plaintiff to choose between two offices and assigning her the smallest office,
forcing Plaintiff to remove a post-it note from her door and a towel covering her
door threshold because they were fire hazards, ignoring Plaintiff’s emails and
4
Case: 13-14477 Date Filed: 04/02/2015 Page: 5 of 14
questions, accusing Plaintiff of taking pictures of patients without consent,
criticizing Plaintiff’s care of patients in two group meetings, falsely accusing
Plaintiff of training deficiencies, and falsely telling Plaintiff she could not return to
work without a doctor’s note after being out on sick leave.
C. Plaintiff’s Third EEO Complaint
While the investigation of her second EEO complaint was ongoing, Plaintiff
filed a third EEO complaint in January 2012. In her third complaint, Plaintiff cited
eight allegedly retaliatory incidents that occurred between July 2011 and
December 2011. One such incident was Plaintiff’s November 2011 performance
review in which her proficiency rating was downgraded to “satisfactory.” The
other incidents included Johnson: discussing Plaintiff’s patients in two group
meetings, finalizing and distributing an on-call schedule without Plaintiff’s
knowledge, and ignoring two of her emails. In addition, Plaintiff complained that
she found out by accident that her request for one day of annual leave was denied,
that she similarly learned by accident about a meeting between the infectious
disease section and pharmacy staff, and that she was not told that a blood test was
no longer available for her to order for her patients.
D. Plaintiff’s Fourth EEO Complaint
In August 2012, Plaintiff filed her fourth EEO complaint. Plaintiff’s fourth
complaint was based on twenty-five incidents of discrimination and retaliation that
5
Case: 13-14477 Date Filed: 04/02/2015 Page: 6 of 14
allegedly occurred between April 2012 and August 2012. These incidents
involved several additional complaints about office assignments, unspecified slurs
about Plaintiff’s national origin and religion, failure to timely notify Plaintiff about
or include her in meetings, coaching staff to tell EEO investigators that they did
not remember any facts about Plaintiff’s prior claims, excluding Plaintiff from
group emails, placing nonsense comments on Plaintiff’s charts, and taking down
Plaintiff’s medical poster.
E. Plaintiff’s Lawsuit
Plaintiff filed this action against Defendant in November 2011, asserting
claims of retaliation and national origin, religious, and gender discrimination. She
subsequently amended her complaint to add an additional claim for a retaliatory
hostile work environment. The district court granted summary judgment to
Defendant on all of Plaintiff’s claims. Plaintiff appealed the district court’s ruling
as to her retaliation and retaliatory hostile work environment claims. 1
II. Discussion
A. Standard of Review
We review de novo the district court’s grant of summary judgment.
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).
1
Plaintiff did not appeal the district court’s grant of summary judgment in favor of
Defendant on her discrimination claims. Accordingly, she has abandoned those claims. See
Access Now v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
6
Case: 13-14477 Date Filed: 04/02/2015 Page: 7 of 14
In conducting our review, we draw all factual inferences and view all evidence “in
the light most favorable to the non-moving party.” Moton v. Cowart, 631 F.3d
1337, 1341 (11th Cir. 2011). Summary judgment is only appropriate if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
B. Retaliation
Title VII prohibits retaliation against an employee for opposing a
discriminatory employment practice or for participating in an investigation or
proceeding concerning employment discrimination. 42 U.S.C. § 2000e-3(a).
Where there is no direct evidence of retaliation, as in this case, we utilize the
McDonnell Douglas burden-shifting framework to analyze an employee’s
retaliation claim. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir.
2010) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973)). Under
this framework, the employee must first establish a prima facie case of retaliation
by showing that (1) she engaged in statutorily protected activity, (2) she suffered
an adverse employment action, and (3) there is a causal relationship between the
two. Id. The employer then has the opportunity to articulate a non-retaliatory
reason for its action, which can be rebutted with evidence of pretext. Id. at 1181-
82.
7
Case: 13-14477 Date Filed: 04/02/2015 Page: 8 of 14
To meet the above causation requirement, the plaintiff must show that the
adverse action would not have occurred “but for” the protected activity. Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2534 (2013).
Temporal proximity between the protected activity and the adverse action can
establish causation if it is “very close.” Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007). We have held that a delay of three to four months is
too long, as a matter of law, to establish causation by temporal proximity. Id.
However, such a delay is not fatal where the plaintiff presents “other evidence
tending to show causation.” Id.; see also Wascura v. City of S. Miami, 257 F.3d
1238, 1248 (11th Cir. 2001) (emphasizing that the plaintiff had introduced
“virtually no evidence of a causal connection” aside from temporal proximity).
In granting summary judgment, the district court determined that the only
adverse actions Plaintiff suffered were her lowered proficiency ratings in
December 2010 and November 2011.2 The court held that Plaintiff could not
establish a causal connection between the lower ratings and any of her protected
activity because the temporal proximity was not “very close.” In support of its
holding, the court noted that there was an eleven month gap between Plaintiff’s
January 2010 EEO complaint and the December 2010 rating, and an eight month
2
Plaintiff does not challenge this conclusion in her initial brief, but she argues in her
reply that the district court applied the wrong legal standard in determining which actions were
adverse. Because Plaintiff raised this argument for the first time in her reply, we do not address
it. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
8
Case: 13-14477 Date Filed: 04/02/2015 Page: 9 of 14
gap between her March 2011 EEO complaint and the November 2011 rating. We
agree with the district court that the time lapse between Plaintiff’s protected
activity and Defendant’s adverse actions was too long, as a matter of law, to
establish causation by temporal proximity. See Thomas, 506 F.3d at 1364.
On appeal, Plaintiff argues that the district court failed to consider “other
evidence” of causation. Specifically, Plaintiff contends that the district court
ignored a series of ongoing retaliatory acts by Johnson that allegedly occurred
between February 2010 and November 2011. The retaliatory acts cited by Plaintiff
include Johnson’s threatening to take away Plaintiff’s Tuesday morning clinic,
speaking to her in a rude manner, ordering her to choose between two offices, and
ignoring her emails, all of which allegedly began within a few months of Plaintiff
filing her first EEO complaint in January 2010. They also include the directive for
Plaintiff to remove a post-it note and towel from her door in April 2010, and the
unlocking of and removal of papers from Plaintiff’s office in July 2010.
A causal relationship might reasonably be inferred from a series of adverse
actions that commenced immediately after a plaintiff engaged in protected activity.
See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998).
However, the intervening retaliatory acts must be material, or significant, to
suggest a causal link. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
67-68 (2006) (“The antiretaliation provision protects an individual not from all
9
Case: 13-14477 Date Filed: 04/02/2015 Page: 10 of 14
retaliation, but from retaliation that produces an injury or harm . . . . We speak of
material adversity because we believe it is important to separate significant from
trivial harms.”). That simply is not the case here. Whatever was said in Plaintiff’s
conversation with Johnson about the Tuesday clinic, Plaintiff acknowledges that
the clinic was immediately reinstated as soon as she complained about it. Most of
the other incidents that allegedly occurred shortly after Plaintiff filed the January
2010 EEO complaint, including the ignored emails, the unsatisfactory office
assignments, the post-it note and towel directive, and the general rudeness, are
more akin to the “petty slights or minor annoyances that often take place at work”
than adverse actions. Id. at 68. These incidents do not support causation. Id.
As to the July 2010 search of, and removal of papers from, Plaintiff’s office,
this incident occurred nearly six months after Plaintiff filed the January 2010 EEO
complaint. Moreover, the undisputed evidence in the record conflicts with
Plaintiff’s characterization of the incident as retaliatory. Johnson testified, and
Plaintiff does not dispute, that her locked office was entered due to issues with
flooding. Plaintiff also does not dispute that patient files and records were strewn
all over her office, and that hospital policy required the files to be secured once her
office was unlocked.
Plaintiff also argues that Lin’s testimony shows causation, because it
conflicts with Johnson’s explanation for Plaintiff’s lowered proficiency rating.
10
Case: 13-14477 Date Filed: 04/02/2015 Page: 11 of 14
When asked to explain why Plaintiff lost her “outstanding” rating, Johnson
testified that Lin “basically” told him to lower everyone’s proficiency ratings. Lin
denied ordering Johnson to lower all proficiency ratings, but testified that he
emphasized to Johnson that ratings must be “honest” and “accurate” assessments
of the employee’s performance. Confronted with Lin’s testimony, Johnson
explained that he “read between the lines” and interpreted Lin’s guidance as a
directive to lower all employee ratings, including Plaintiff’s. According to
Johnson, Lin would not have given any guidance concerning performance ratings
if he had wanted everything to stay the same.
Contrary to Plaintiff’s argument, Lin’s testimony does not conflict with
Johnson’s or otherwise suggest a causal link between Plaintiff’s EEO complaints
and her downgraded proficiency rating. In addition, Johnson’s explanation for the
lower rating is supported by the record. Simoes, Ellis, Walsch, and even Johnson
himself all received lower proficiency ratings during the relevant time period.
Consistent with Johnson’s explanation, Ellis, Simoes, and Walsch testified that
they were told the lower proficiency ratings were applied across the board in
furtherance of a new policy from management.
In short, neither the allegedly retaliatory ongoing acts cited by Plaintiff, nor
Lin’s testimony, constitutes “other evidence” of causation. Moreover, the time
lapse between Plaintiff’s protected activity and the alleged adverse action is too
11
Case: 13-14477 Date Filed: 04/02/2015 Page: 12 of 14
long to establish causation by temporal proximity. Accordingly, the district court
correctly granted summary judgment to Defendant on Plaintiff’s retaliation claim.
C. Retaliatory Hostile Work Environment
To prevail on her retaliatory hostile work environment claim, Plaintiff must
show that: (1) she engaged in protected activity, (2) after doing so, she was
subjected to unwelcome harassment, (3) her protected activity was a “but for”
cause of the harassment, and (4) the harassment was sufficiently severe or
pervasive to alter the terms of her employment. Gowski v. Peake, 682 F.3d 1299,
1311-12 (11th Cir. 2012). The fourth prong has both an objective and a subjective
component. Id. at 1312. That is, the employee must “subjectively perceive” the
harassment as severe or pervasive enough to change the terms of her employment,
and the harassment must result in an environment that a reasonable person would
find hostile or abusive. Id. In evaluating the objective component, we consider the
frequency and severity of the retaliatory conduct, as well as whether it (1) is
physically threatening or humiliating, and (2) unreasonably interferes with the
employee’s job performance. Id.
In granting summary judgment on this claim, the district court concluded
that Plaintiff’s alleged harassment was not sufficiently severe or pervasive to alter
the terms of her employment. We agree with this conclusion. Although Plaintiff
alleged numerous retaliatory incidents, most of the incidents involved petty office
12
Case: 13-14477 Date Filed: 04/02/2015 Page: 13 of 14
squabbles and communication issues that are common in any workplace. For
example, Plaintiff complained that Johnson excluded her from and did not respond
to emails, made unfavorable office assignments, failed to inform her of meetings or
that a medical test was no longer available, denied her leave on one occasion,
removed programs from her computer, and directed her to remove a note and towel
from her door. These types of incidents, which the district court accurately
described as “ordinary tribulations” of the workplace, are not sufficiently severe to
support a hostile work environment claim. See id.
Plaintiff cited a few occasions when she felt particularly upset and
humiliated, specifically when (1) Johnson proposed canceling her Tuesday clinic,
(2) her office was unlocked and her papers removed in July 2010, and (3) her
patients were discussed during section meetings. There is no evidence to suggest
that any of these incidents was sufficiently severe to change the terms of Plaintiff’s
employment. As discussed, Plaintiff concedes that her Tuesday clinic was
immediately reinstated, and that her office was unlocked and the papers therein
secured as a result of flooding issues. Plaintiff further admits that it was standard
practice to discuss patient treatment during meetings, and that neither her name nor
the patient’s name was mentioned in the allegedly offensive discussions.
Plaintiff claimed more generally that Johnson spoke to her in what she
perceived to be a demeaning, threatening, and belittling manner on a few
13
Case: 13-14477 Date Filed: 04/02/2015 Page: 14 of 14
occasions. However, Plaintiff did not offer anything more than her own vague and
conclusory statements to support this claim. A reasonable juror could not
conclude, based on these statements alone, that Plaintiff’s work environment was
objectively hostile and abusive. See Gowski, 682 F.3d at 1312.
III. Conclusion
In sum, the district court did not err in granting summary judgment to
Defendant on Plaintiff’s retaliation claim. Plaintiff did not establish causation
either by showing “very close” temporal proximity or presenting other evidence
suggesting a causal link between her protected activity and Defendant’s adverse
actions. Neither did the district court err in granting summary judgment on
Plaintiff’s retaliatory hostile work environment claim. Based on the evidence in
the record, no reasonable juror could find that Plaintiff’s work environment was
sufficiently hostile and abusive to support such a claim. Accordingly, we affirm
the district court’s grant of summary judgment in favor of Defendant on both of
Plaintiff’s claims.
AFFIRMED.
14