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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11634
Non-Argument Calendar
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D.C. Docket No. 3:10-cv-00083-CAR
JOE A. BARNETT,
Plaintiff-Appellant,
versus
ATHENS REGIONAL MEDICAL CENTER INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(December 16, 2013)
Before WILSON, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Joe A. Barnett, proceeding with counsel, appeals the district
court’s grant of summary judgment to Athens Regional Medical Center
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(“ARMC”), Barnett’s former employer, in Barnett’s action for (1) age and race
discrimination and (2) retaliation, brought under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 691, et seq.; Title VII, 42 U.S.C.
§ 2000e-2, et seq.; and 42 U.S.C. § 1981 (“§ 1981”). The district court granted
summary judgment to ARMC on the basis that Barnett had not established, on
either of the claims, a prima facie case on the element of an adverse employment
action.
I. Discrimination
Barnett contends that his written caution, his written warning, and his 2009
performance evaluation amounted to adverse employment actions. Barnett argues
that the inference could be drawn that an unsatisfactory score on his evaluation
precluded him from getting a merit increase.
We review de novo a district court’s grant of summary judgment. Crawford
v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). Summary judgment must be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). If the moving party discharges this burden, the burden then shifts to the
nonmoving party to go beyond the pleadings and present specific evidence
showing a genuine issue of material fact. See Fed.R.Civ.P. 56(c), (e). Such
evidence must consist of more than mere conclusory allegations or legal
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conclusions. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). When ruling
on a motion for summary judgment, any inferences must be viewed in the light
most favorable to the party opposing the motion. Welch v. Celotex Corp., 951 F.2d
1235, 1237 (11th Cir. 1992).
Title VII makes it unlawful for an employer to retaliate against an employee
for his participation in certain statutorily protected activities:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e‐3(a).
First, the plaintiff must establish a prima facie case, and if the plaintiff does
so, the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its action. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the
employer meets this burden, the plaintiff then has an opportunity to show that the
employer’s proffered reasons for the adverse employment action were merely
pretext for discrimination. Id. at 253, 101 S.Ct. at 1093.
Because Title VII, the ADEA, and § 1981 “have the same requirements of
proof and use the same analytical framework” for determining whether a plaintiff
has made a prima facie showing of either (1) adverse employment action, or
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(2) retaliation, we will analyze the claims together. Standard v. A.B.E.L. Serv.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (analogizing the analytical framework
used for Title VII to that used in § 1981 claims); see Chapman v. AI Transport,
229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (giving the modified prima facie
elements required under the ADEA, including that there be an adverse employment
action).
Generally, a plaintiff may establish his “prima facie case of disparate
treatment by showing that [he] was a qualified member of a protected class and
was subjected to an adverse employment action in contrast with similarly situated
employees outside the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1087 (11th Cir. 2004) (citations omitted).
We have held that “memoranda of reprimand or counseling that amount to
no more than a mere scolding, without any following disciplinary action, do not
rise to the level of adverse employment actions sufficient to satisfy the
requirements of Title VII.” Davis v. Town of Lake Park, 245 F.3d 1232, 1236
(11th Cir. 2001) (quotation and alteration omitted). The negative evaluation must
actually lead to a material change in the terms or conditions of employment, such
as “an evaluation that directly disentitles an employee to a raise of any
significance.” Gillis v. Georgia Dept. of Corr., 400 F.3d 883, 888 (11th Cir.
2005). Although proof of direct economic consequences is not required in all
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cases, “the asserted impact cannot be speculative and must at least have a tangible
adverse effect on the plaintiff’s employment.” Davis, 245 F.3d at 1239.
In this case, we conclude from the record that Barnett has failed to establish
his prima facie case of discrimination because he was not subjected to an adverse
employment action. The written reprimands and negative performance review had
no effect on Barnett’s employment. Indeed, Barnett admitted that his two written
reprimands did not result in his termination, demotion, suspension, a reduction in
pay, or a change in job duties. Barnett also admitted that neither of the written
warnings he received would have prevented an employee from receiving a merit
raise. Further, Barnett could only speculate that his employer might have
considered these as grounds for future adverse employment action. See Davis, 245
F.3d at 1239. Barnett argued that the written reprimands and the negative
performance evaluation were steps in Defendant’s progressive disciplinary policy
which could have led to harsher disciplinary action. However, he could not
establish that these actions actually led to any tangible effect on his employment.
Both Title VII and the comparable language in the ADEA “focuses on the effects
of the action on the employee rather than the motivation of the employer.” Smith
v. City of Jackson, 544 U.S. 228, 235‐36, 125 S.Ct. 1536, 1542, 161 L.Ed.2d 410
(2005) (emphasis in the original). Thus, he did not discharge his burden.
Fed.R.Civ.P. 56(c); see Avirgan, 932 F.2d at 1577. Moreover, inferences based on
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speculation and conjecture are not reasonable. Avenue CLO Fund, Ltd. v. Bank of
Am., NA, 723 F.3d 1287, 1294 (11th Cir. 2013). Thus, based on the above, the
inference could not be drawn that an unsatisfactory score on his evaluation would
preclude a merit increase.
Moreover, ARMC ultimately separated Barnett from employment under
medical resignation, and no evidence showed that Barnett’s separation occurred for
any reason other than his exhaustion of Family Medical Leave Act (“FMLA”) and
non‐FMLA leave and the indeterminacy of his return. Finally, any stress that
Barnett suffered as a result of the reprimands and negative performance review
was not an adverse employment action. The anti-discrimination statutes do “not
guarantee a stress‐free working environment.” Hipp v. Liberty Nat. Life Ins. Co.,
252 F.3d 1208, 1233‐34 (11th Cir. 2001). Because Barnett cannot establish that he
suffered an adverse employment action, Barnett’s Title VII, ADEA, and § 1981
discrimination claims fail as a matter of law. Thus, we hold that the district court
did not err in granting summary judgment to ARMC on these claims.
II. Retaliation
Barnett argues that the record contained sufficient facts to show that,
because he reported the age and race discrimination, he suffered the following
adverse employment actions: unwarranted reprimands; a negative performance
evaluation; denial of his request for vacation; and, ultimately, removal from
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employment. Barnett contends, initially, that the burden never shifted to him, the
non-moving party, because ARMC never met its initial burden to demonstrate that
the record contained no facts supporting the retaliation claim. Further, Barnett
mentions that the district court violated his basic constitutional rights to due
process, specifically his right to be heard on his retaliation claim.
To establish a prima facie case of discriminatory retaliation, under Title VII,
§ 1981, and the ADEA, a plaintiff must show that: (1) he participated in a
protected activity; (2) he suffered an adverse employment action; and (3) there was
a causal connection between the plaintiff’s participation in the protected activity
and the adverse employment action. Goldsmith v. City of Atmore, 996 F.2d 1155,
1162-63 (11th Cir. 1993) (stating the elements required for a prima facie showing
of retaliation under Title VII, which are also applicable to § 1981 and ADEA
retaliation claims); see Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 915,
919 (11th Cir. 1993) (retaliation under ADEA); CBOCS West, Inc. v. Humphries,
553 U.S. 442, 457, 128 S.Ct. 1951, 1961, 170 L.Ed.2d 864 (2008) (retaliation
claims permitted under § 1981).
However, an “adverse employment action” in the retaliation context does not
carry the restrictive definition that it does in the discrimination setting. In
particular, “the antiretaliation provision [under Title VII], unlike the substantive
provision, is not limited to discriminatory actions that affect the terms and
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conditions of employment.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,
64, 126 S.Ct. 2405, 2412-13, 165 L.Ed.2d 345 (2006). Instead, the test is whether
“a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 68, 126 S.Ct.
at 2415 (quotations omitted). Further, “the significance of any given act of
retaliation will often depend upon the particular circumstances. Context matters.”
Id. at 69, 126 S.Ct. at 2415. Moreover, “[t]he anti‐retaliation provision [of Title
VII] protects an individual not from all retaliation, but from retaliation that
produces an injury or harm.” Id. at 67, 126 S.Ct. at 2414. The Supreme Court
stated that “material adversity” is distinguishable from mere “trivial harms.” Id. at
68, 126 S.Ct. at 2415.
In this case, neither the reprimands, the negative evaluation, nor the denial of
Barnett’s vacation request were adverse employment actions. There was no
evidence that Barnett suffered harm from any action that would have deterred a
reasonable employee from making or supporting a charge of discrimination. See
Burlington, 548 U.S. at 68, 126 S.Ct. at 2415. In particular, nothing in the record
showed that these acts were materially adverse in that they would have affected
any future pay raise or his future job status in any way. On the contrary, the
evidence established that these acts had no effect on his job status whatsoever.
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Notably, AMRC issued the two reprimands, for Barnett’s contribution to the delay
in two projects, in November 2009, prior to Barnett making his discrimination
complaint in December 2009. Based on this timing, ARMC could not have
retaliated against Barnett through these reprimands.
Additionally, the negative performance evaluation would not, by itself, have
deterred a reasonable person from making a charge of discrimination, especially in
this case, where such an evaluation, by itself, would not impact his salary or job
status. See id. Further, the denial of a vacation request would not have deterred a
reasonable employee from making, or supporting, a discrimination charge. See id.
Under the particular circumstances of this case, no evidence existed as to why
Barnett’s request was denied. Moreover, Barnett had been out on medical leave
for almost a month, and four days after returning to work, he requested additional
time off. It would have been reasonable for an employee to expect that his
vacation request would be denied if he had been away from work for almost a
month.
Finally, it was not clear whether Barnett’s separation was an adverse
employment action at all. Barnett had taken leave from employment for medical
reasons, and, once Barnett exhausted all of his FMLA and non‐FMLA leave,
AMRC had no choice but to separate him from employment. Further, the
circumstances at the time indicated that Barnett would likely never be returning to
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work. Barnett’s doctor ordered indefinite leave for an undetermined period of
time. Under these circumstances, a reasonable person would not be deterred from
filing a charge of discrimination.
Even assuming Barnett’s separation was an adverse employment action,
there was no evidence showing that it was the result of anything other than the
exhaustion of his FMLA and non‐FMLA leave. Thus, Barnett’s report of
discrimination and his separation from employment were “completely unrelated.”
See Holifield, 115 F.3d at 1566. Moreover, Barnett reported the alleged
discrimination in December 2009, and was separated from employment six months
later in June 2010. Thus, Barnett’s protected activity and his separation from
employment were too remote to provide a sufficient causal relationship. See
Higdon v. Jackson, 393 F.3d 1211, 1220-21 (11th Cir. 2004) (noting that, while a
one-month gap might suggest causal relationship, a three-month gap between the
protected activity and the adverse employment action was insufficient to establish
causation). In sum, the record reflects no evidence that Barrett’s removal from
employment was retaliatory.
Based on the above decision, we conclude that the district court correctly
granted summary judgment to ARMC on Barnett’s retaliation claims because
Barnett failed to establish his prima facie case. Accordingly, we affirm the grant
of summary judgment in favor of ARMC.
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AFFIRMED.
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