[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15485 ELEVENTH CIRCUIT
JULY 2, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-01317-CV-7-SLB
PAMELA TIGGS-VAUGHN,
Plaintiff-Appellant,
versus
TUSCALOOSA HOUSING AUTHORITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 2, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Pamela Tiggs-Vaughn, an African-American former employee of the
Tuscaloosa Housing Authority (“THA”), appeals the district court’s grant of
summary judgment in favor of THA on her claim of retaliatory discharge, brought
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e-2(a) and 3(a). After review of the record and the parties’ briefs, we
AFFIRM.
I. BACKGROUND
Tiggs-Vaughn began working for THA as a receptionist in January 2000.
See Doc. 1 ¶ 9; Doc. 39, Exh. A at 26.1 She was promoted to the position of
Neighborhood Coordinator in April 2000, and was promoted again in 2001 to the
position of Public Housing Site Manager One, which she held until she was
terminated in April 2006. Doc. 1 ¶ 9; Doc. 39, Exh. A at 54-55. On 8 March
2006, Tiggs-Vaughn filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), alleging that she was discriminated against
on the basis of her race when she was denied promotions in October and
November 2005. Doc. 48, Exh. 3. On 29 March 2006, Tiggs-Vaughn wrote a
letter to THA’s Executive Director, Richard Herbert, which read, in relevant part:
Throughout my employment, Mr. Rick Herbert . . . has
continuously subjected me to unprofessional behavior.
1
See CM/ECF for the U.S. Dist. Ct. for the N.D. Ala., Case No. 07-01317-CV-7-SLB.
2
According to the [THA] Personnel Policy and [E]mployee
Handbook (June 1, 2000), decision-making policy practices of
Mr. Rick Herbert are unethical and racially discriminatory. Jobs
are often created for various employees. These job openings
were not posted for all employees, but for employees that are
appointed by . . . Mr. Rick Herbert. These jobs are given to
Caucasian employees and are on a much higher pay scale than
that of an African American employee. In most instances, these
employees are not qualified for the created position, [n]or do
they have degrees or work experience(s) to function and perform
efficiently in this position.
The Caucasian employees are also afforded more skilled training
opportunities, than an African American. Recently two (2) jobs
were posted in which I applied for one of the position[s], and
several employees knew first hand who would be hired before
the position was ever posted.
On several occasions, I have attempted to reason with Mr. Rick
Herbert about various issues that he has against me and it always
turns into an unfavorable outcome, or him screaming and
shouting at me.
Personally, I refuse to take anymore of Mr. Herber’s uninviting
and unwelcoming attitudes toward me again. Every time I talk
to him or attempt to talk to him on a professional level about
[THA] issues/concerns for residents or myself the conversation
turns into a shouting match, and he goes into a rage and I
politely leave.
....
On several occasions, he has gone into a rage with yelling and
screaming in front of other [THA] employees. This madness
must be stopped! I know that I have been ostracized,
psychologically threatened, embarrassed, ridiculed and
unreasonably over burdened . . . .
3
Doc. 48, Exh. 5. She sent copies of the letter to Walt Maddox, the mayor of
Tuscaloosa, and Dr. Cordell Wynn, the Chairman of the THA, see id., contending
later that THA procedures required her to do so, see Doc. 39, Exh. A. at 75-76;
Doc. 48, Exh. 4.2 Herbert issued the following response in a 30 March 2006
memorandum to Tiggs-Vaughn:
On March 29, 2006, I received a letter from you addressed to me
regarding a grievance complaint of discriminatory practices
allegedly done by me. A copy of this letter was sent to Dr.
Cordell Wynn, and Mayor Walt Maddox. The letter is replete
with factual inaccuracies and outright lies. I take all
discrimination complaints very seriously and all are investigated
on their individual merits. However, I will not tolerate your
publishing lies about me to third parties. While your complaints
and conduct are under investigation, you are hereby placed upon
administrative leave with pay until further notice from me.
Doc. 48, Exh. 10.
Paige Oldshue, THA’s general counsel, thereafter conducted an
investigation of Tiggs-Vaughn’s allegations. Doc. 39, Exh. C. During her
2
The Tuscaloosa Housing Authority Personnel Policy and Employee Handbook does not
authorize employees to report grievances to the Mayor. It provides, in pertinent part:
If at any time an employee believes (s)he is being subjected to harassment or
discrimination, or if an employee becomes aware of such conduct being
directed at someone else, that employee should promptly notify his/her
supervisor, or the Executive Director. . . . In the event the alleged ‘harasser’
is the supervisor, then the report should be taken to the Executive Director.
In the event the alleged ‘harasser’ is the Executive Director, then the report
should be taken to the chairman of the Board of Commissioners.
Doc. 39, Exh. A at 60-61.
4
investigation, Oldshue was unable to find any employees who could substantiate
the allegations Tiggs-Vaughn made in her 29 March letter. Id. at ¶ 3, 6. Oldshue
thus made a “good faith determination that the allegations were in fact false” and
advised the THA “that a business decision to terminate Ms. Tiggs-Vaughn was
warranted based on her display of dishonesty.” Id. ¶ 7. On 13 April 2006,
Herbert notified in writing Tiggs-Vaughn that her employment was being
terminated:
[Y]ou sent a copy of a letter to Dr. Cordell Wynn and Mayor
Walt Maddox where in you knowingly made irresponsible, false
and malicious statements against me as Executive Director of the
[THA] with the intent to harm and destroy my reputation as
Executive Director. Your letter of March 2[9], 2006 . . . was
replete with false statements and lies about my conduct as
Executive Director. While I respect your legal right to make
allegations of discrimination against me, your letter went well
beyond a complaint of discrimination. Your letter alleges that I
have been verbally abusive to you on repeated occasions. Those
statements and others in that letter are absolutely false. Your
constant attempts to discredit my position have left me with no
other choice than to terminate your employment with the
Tuscaloosa Housing Authority.
Doc. 48, Exh. 7.
On 18 April 2006, Tiggs-Vaughn filed an EEOC charge, alleging that she
had been “terminated for reporting and opposing race discrimination in
employment in violation of Title VII of the Civil Rights Act of 1964.” Doc. 48,
5
Exh. 4. Tiggs-Vaughn received a right-to-sue letter from the EEOC on 19 April
2007, see Doc. 48, Exh. 8, and filed the instant complaint against THA on July
2007, alleging that THA terminated her in retaliation for filing the 8 March 2006
charge of discrimination and for complaining of discrimination in the 29 March
2006 letter to THA’s Board of Commissioners and Mayor Maddox,3 Doc. 1 at 3.
THA moved for summary judgment on 28 January 2009, arguing, inter alia,
that it had “legitimate, nondiscriminatory reasons for terminating [Tiggs-
Vaughn’s] employment: her dishonesty as published in her March 29, 2006 letter,
and her disruptive behavior and insubordination.” Doc. 38 at 18. Accordingly,
THA contended, even if Tiggs-Vaughn could establish a prima facie case of
retaliation, she failed to meet her burden of showing that the reasons offered by
THA for terminating her employment were pretextual. See Doc. 38 at 17, 24.
Tiggs-Vaughn responded, arguing that she did not need to establish a prima
facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817 (1973) because the following was direct evidence of
discrimination: (1) the termination itself, because it immediately followed her
3
Tiggs-Vaughn also asserted claims of discrimination based on THA’s failure to promote
her in October and November 2005. See Doc. 1 at 3. The district court found that these claims
were time-barred and dismissed them accordingly. See Doc. 53 at 8-9. Because Tiggs-Vaughn
offers no argument with respect to these claims, she has abandoned them on appeal. See Hart v.
Hodges, 587 F.3d 1288, 1300 n.12 (11th Cir. 2009) (per curiam) (“[A]rguments not raised by an
appellant are deemed abandoned.”).
6
complaints of racial discrimination; (2) the absence of record keeping, which
“len[t] itself to deceptive and discriminatory practices”; (3) THA’s failure to
provide her with the staff she needed to do her job; (4) Herbert’s reliance on
others’ statements against her without verifying the truth of those statements; and
(4) Herbert’s overbearing and hostile attitude towards her. See Doc. 47 at 8, 15-
16.
Tiggs-Vaughn argued further that the following evidence showed that
THA’s proffered reasons for terminating her were pretextual: (1) she had a good
faith belief that she had followed the proper procedures for raising a grievance
regarding discrimination; (2) Herbert refused to answer a question during his
deposition about whether he had any African American friends; (3) Herbert did
not perform regular performance evaluations, which “len[t] an amber to the raging
torment of discriminatory practices on others”; (3) Herbert was allowed to hire
family members against THA policy, leading to a “dysfunctional” organization
marked by “discriminatory tendencies.” Id. at 18, 19-21.
The district court found that while Tiggs-Vaughn had successfully
established a prima facie case of retaliation, she failed to “meet [THA’s]
articulated reason [for terminating her] ‘head-on’ and rebut it.” Doc. 53 at 11-12.
Specifically, the court found that “[Tiggs-Vaughn’s] allegations regarding her
7
good faith belief regarding complaint procedures, Herbert’s lack of African
American friends, his failure to evaluate her performance, and his hiring of family
members [was] not evidence that [THA’s] proffered reason for her termination
was not an honest explanation.” Id. at 13. The district court granted THA’s
motion for summary judgment accordingly and this appeal followed.
II. DISCUSSION
We review de novo a district court’s grant of summary judgment, “applying
the same legal standards used by the district court.” Galvez v. Bruce, 552 F.3d
1238, 1241 (11th Cir. 2008). “Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no
genuine issue of fact and compels judgment as a matter of law.” Swisher Intern.,
Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir. 2008); Fed. R. Civ. P. 56(c).
On appeal, Tiggs-Vaughn argues that the district court erred by failing to
find that her sworn statement to the effect that she followed protocol in filing her
2006 grievance amounted to direct evidence of unlawful retaliation. Tiggs-
Vaughn further argues that Herbert’s statement, to wit, that upon receiving Tiggs-
Vaughn’s 29 March 2006 letter, he referred the matter to THA’s counsel for a full
investigation “in order to avoid the appearance of retaliation,” Doc. 39, Exh. B. at
3, is direct evidence of retaliation.
8
Under Title VII, it is unlawful for an employer to discharge any individual
because of that individual’s race or color, or to retaliate against any individual for
engaging in protected conduct. 42 U.S.C. §§ 2000e-2(a)(1), 3(a). A plaintiff may
establish a Title VII claim through direct evidence of discrimination or through
circumstantial evidence that creates an inference of discrimination. Hinson v.
Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000). “Direct
evidence is evidence that establishes the existence of discriminatory intent behind
the employment decision without any inference or presumption.” Standard v.
A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998). “If a plaintiff can provide
direct evidence of discriminatory intent, then the employer must prove by a
preponderance of the evidence that the same employment decision would have
been made in the absence of the discriminatory intent.” Id.
None of what Tiggs-Vaughn cites as direct evidence establishes, without
any inference or presumption, that THA’s decision to fire her was motivated by a
discriminatory intent. Where direct evidence of discrimination is lacking, a
plaintiff may present circumstantial evidence of discrimination sufficient to create
a jury question. E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th
Cir. 2002) (per curiam). A retaliation claim based on circumstantial evidence is
analyzed according to the burden-shifting framework set forth in McDonnell
9
Douglas. See id. Under this frame-work, “the plaintiff must first establish a prima
facie case [of discrimination] by showing (1) statutorily protected expression, (2)
adverse employment action, and (3) a causal link between the protected expression
and the adverse action.” Goldsmith v. City of Artmore, 996 F.2d 1155, 1163 (11th
Cir. 1993). Once the plaintiff has satisfied her initial burden, the defendant must,
in order to rebut the presumption of retaliation, come forward with a legitimate,
non-discriminatory reason(s) for the employment action. Id. Assuming the
defendant does so, the burden then shifts to the plaintiff to prove by a
preponderance of the evidence that the defendant’s proffered reason(s) is a pretext
for unlawful discrimination. Id. “[A] reason cannot . . . be a ‘pretext for
discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515, 113 S. Ct. 2742, 2752 (1993). “Because the plaintiff bears the burden of
establishing pretext for discrimination, he must present significant probative
evidence on the issue to avoid summary judgment.” Mayfield v. Patterson Pump
Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (quotation marks, alterations, and
citation omitted). Conclusory allegations or unsupported assertions of
discrimination, without more, “are not sufficient to raise an inference of pretext.”
Id. (quotation marks and citation omitted). Rather, the plaintiff must meet the
10
proffered reason “head on and rebut it.” Chapman v. AI Transp., 229 F.3d 1012,
1030 (11th Cir. 2000) (en banc).
Tiggs-Vaughn presented no evidence that the performance-related reasons
cited by THA were false and that discrimination was the true reason for her
termination. Specifically, she presented no evidence to refute Oldshue’s
conclusion, based on her investigation, that Tiggs-Vaughn’s allegations against
Herbert were false. Although Tiggs-Vaughn stated in her letter that “[o]n several
occasions, [Herbert] has gone into a rage with yelling and screaming in front of
other [THA] employees,” no other employees had witnessed Herbert’s alleged
rages. Nor did Tiggs-Vaughn present any evidence to counter THA’s assertion
that she was a disruptive employee. Tiggs-Vaughn’s conclusory allegations and
unsupported assertions of discrimination and retaliation were insufficient to raise
an inference of pretext and rebut THA’s alleged legitimate, non-discriminatory
reasons for terminating her employment. See Mayfield, 101 F.3d at 1376.
III. CONCLUSION
Tiggs-Vaughn appeals the district court’s grant of summary judgment in
favor of THA on Tiggs-Vaughn’s claim of retaliation. For the foregoing reasons,
we AFFIRM.
AFFIRMED.
11