[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11719 ELEVENTH CIRCUIT
NOVEMBER 3, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cv-00103-CB-C
VIVIAN DUDLEY,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
CITY OF MONROEVILLE, ALABAMA,
llllllllllllllllllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 3, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Vivian Dudley, an African American female, filed a lawsuit against her
current employer, the City of Monroeville, alleging retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). After discovery, the
City filed a motion for summary judgment, which the district court granted.
Dudley then filed this appeal making three principal arguments: (1) that she
established a prima facie case of retaliation; (2) that summary judgment was
inappropriate because the record contains sufficient evidence to cast doubt on
whether the City’s non-retaliatory explanations for its actions are legitimate; and
(3) that the district court did not draw all reasonable inferences in her favor
because it accepted unsworn statements as evidence against her, yet refused to
consider an unsworn statement as evidence against the City.
I.
After the City promoted Dudley from court magistrate to court
clerk/magistrate, she learned that her salary did not increase to the same level as
those of similarly situated employees. Believing the reason for this disparity was
race discrimination, Dudley filed a complaint with the Equal Employment
Opportunity Commission. She alleges that after she filed this EEOC charge her
immediate supervisor, Judge Phillip Sanchez, retaliated by suspending her,
reprimanding her, denying her a pay increase, ordering her to attend a training
session, and encouraging citizens to file complaints against her. Dudley then filed
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a second EEOC complaint alleging retaliation in violation of Title VII, which is
the only claim she has asserted in this lawsuit.
In its motion for summary judgment, the City contended that Dudley could
not show a causal connection between the first EEOC complaint and the adverse
employment actions. It also proffered non-retaliatory reasons to justify Judge
Sanchez’s actions, claiming among other things that Dudley was insubordinate,
was the subject of several citizen complaints, made personal long-distance phone
calls while at work, and failed to use the City’s time-keeping system properly.
The district court granted summary judgment to the City, concluding
Dudley did not establish a prima facie case of retaliation. It also reasoned that,
even if Dudley had satisfied her initial burden, she did not create a factual issue
regarding whether the City’s non-retaliatory justifications were pretextual.
II.
We review de novo the district court’s grant of summary judgment, applying
the same legal standard as the district court and viewing all evidence in the light
most favorable to the nonmoving party. Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008). Summary judgment is
appropriate “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.
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Civ. P. 56(a). “A moving party is entitled to summary judgment if the nonmoving
party has ‘failed to make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof.’” Parks v. City of Warner
Robins, 43 F.3d 609, 612 (11th Cir. 1995) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986)).
III.
Title VII makes it unlawful to discriminate against employees on the basis
of race, color, sex, religion, or national origin. 42 U.S.C. § 2000e-2(a). It also
prohibits employers from retaliating against employees who oppose “unlawful
employment practice[s]” or who make charges against an employer during “an
investigation, proceeding, or hearing.” Id. § 2000e-3(a).
We use the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), when a plaintiff relies on
circumstantial evidence to establish a Title VII retaliation claim, as Dudley does
here. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
The plaintiff first bears the burden of establishing the three prongs of a prima facie
case of retaliation. She must show that “(1) [s]he engaged in statutorily protected
activity; (2) [s]he suffered a materially adverse action; and (3) there was a causal
connection between the protected activity and the adverse action.” Howard v.
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Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Once a plaintiff establishes
a prima facie case, the burden shifts to the employer to “proffer a legitimate, non-
retaliatory reason for the adverse employment action.” Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). If the employer succeeds, the
plaintiff must then show by a preponderance of the evidence that the proffered
reason for the adverse action is “a pretext for prohibited, retaliatory conduct.” Id.;
see also McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008).
For simplicity, we will assume that Dudley can establish a prima facie case
of retaliation. The City’s burden, then, is to proffer a legitimate, non-retaliatory
reason for its adverse actions. It has provided several, including time-keeping
errors, citizen complaints, insubordination, and poor job performance. It also
claims that Dudley took on an intern without permission and incurred
unauthorized overtime. To survive summary judgment, Dudley must present
sufficient evidence to cast doubt on the validity of these non-retaliatory reasons in
the mind of a reasonable juror. See Crawford v. Carroll, 529 F.3d 961, 976 (11th
Cir. 2008).
Dudley has offered only conclusory allegations of pretext in her attempt to
rebut the City’s non-retaliatory justifications. She has not challenged the City’s
claim that it received complaints about her work performance. Nor does she deny
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making time-keeping errors. In fact, Dudley concedes that some of the City’s
explanations are true, admitting that she took on an intern without permission and
incurred unauthorized overtime.1 To survive summary judgment, Dudley must
create a genuine issue of material fact both as to whether the City’s reasons are
false and as to whether “discrimination was the real reason.” St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993). She has done
neither. Instead, Dudley admitted that some of the reasons are true and provided
no specific evidence that would “allow a factfinder to disbelieve [the City’s]
proffered explanation for its actions.” Combs v. Plantation Patterns, 106 F.3d
1519, 1532 (11th Cir. 1997); cf. Chapman v. AI Transp., 229 F.3d 1012, 1030
(11th Cir. 2000) (en banc) (“A plaintiff is not allowed to recast an employer’s
proffered nondiscriminatory reasons or substitute his business judgment for that of
the employer. Provided that the proffered reason is one that might motivate a
reasonable employer, an employee must meet that reason head on and rebut it, and
1
Dudley attempts to rebut the City’s non-retaliatory justifications by
claiming that she consistently received positive evaluations from Judge Sanchez
before her first EEOC filing but received a negative evaluation after the filing.
She claims that this reversal establishes pretext. But Dudley neither submitted
evidence of the performance evaluations nor raised this argument before the
district court, so we will not consider it further. See Johnson v. United States, 340
F.3d 1219, 1228 n.8 (11th Cir. 2003) (“Arguments not raised in the district court
are waived.”).
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the employee cannot succeed by simply quarreling with the wisdom of that
reason.”).
IV.
Dudley’s final argument is that the district court failed to draw all
reasonable inferences in her favor because it did not consider the unsworn
statement of a citizen who asserted that Judge Sanchez told her to put her
complaint in writing when it ruled on the City’s summary judgment motion.
Unsworn statements do not meet the requirements of Rule 56, so the district court
could not—and properly did not—rely on the content of the citizen’s statement.
Carr v. Tatangelo, 338 F.3d 1259, 1273 n.27 (11th Cir. 2003).
Nor did the district court violate this rule when it considered the City’s other
proffered evidence of citizen complaints against Dudley. The district court did not
rely on the content of any unsworn citizen complaint; it considered only the
existence of such grievances as evidence that Judge Sanchez had a non-retaliatory
reason for his actions. That purpose is valid, and Dudley did not dispute the
existence of citizen complaints.
AFFIRMED.
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