[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 11, 2010
Nos. 09-10283 & 09-11530 JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 07-00282-CV-WSD-1
BELINDA SAUNDERS,
Plaintiff-Appellant,
versus
EMORY HEALTHCARE, INC.,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(January 11, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Belinda Saunders, proceeding pro se, appeals from the district court’s order
granting summary judgment to Emory Healthcare Inc. (“Emory”) in her
employment discrimination action, brought pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. On appeal,
Saunders argues that the district court erred by (1) denying her motion to strike a
declaration attached to Emory’s summary judgment motion, (2) granting in part
Emory’s motion to strike unauthenticated documents attached to her summary
judgment response, and (3) granting Emory summary judgment on her racial
discrimination, retaliation, and hostile work environment claims. After a review of
the record and the parties’ briefs, we affirm.
We review district court’s rulings regarding the admission of evidence
deferentially, testing for an abuse of discretion. Goldsmith v. Bagby Elevator Co.,
Inc., 513 F.3d 1261, 1276 (11th Cir. 2008). “We will not overturn an evidentiary
ruling unless the moving party establishes a substantial prejudicial effect.” Id.
We review the grant of summary judgment de novo. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is
rendered ‘if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
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law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “In making this assessment, the Court
must view all the evidence and all factual inferences reasonably drawn from the
evidence in the light most favorable to the nonmoving party, and must resolve all
reasonable doubts about the facts in favor of the non-movant.” Id. (quotation
marks and citations omitted).
I. Evidentiary Rulings
The district court’s denial of Saunders’ motion to strike the Margolis
Declaration was not an abuse of discretion. Margolis testified from personal
knowledge as required by Fed. R. Civ. P. 56(e). Saunders contends that the
Declaration is inadmissible hearsay that cannot be properly considered on a motion
for summary judgment, but concedes that under Fed. R. Civ. P. 56(e) and Macuba
v. Deboer, 193 F.3d 1316 (11th Cir. 1999), affidavits and statements that would
constitute hearsay, if reducible to admissible evidence, may be properly considered
in support of a motion for summary judgment. In Macuba, this Court stated that “a
district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be reduced to admissible evidence at trial
or reduced to admissible form.” Id. at 1323 (internal quotation marks omitted). As
the district court correctly concluded, any documents attached to the Declaration
are either non-hearsay or could be reduced to admissible form.
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Saunders’ further arguments are unavailing. Saunders argues that the district
court erred by requiring her to file an affidavit to dispute the Margolis Declaration.
Saunders misapprehends the district court’s statement that Saunders was permitted
to submit affidavits disputing the Margolis Declaration. To the extent that
Saunders argues that the Margolis Declaration should have been stricken based on
inconsistencies with the record, Saunders has not supported that argument.
Therefore, the district court did abuse its discretion by refusing to strike the
Margolis Declaration. Saunders argues that Exhibits 9-35 of her own deposition
should be stricken. Because Saunders’ motion to strike focused only on the
Margolis Declaration and not Exhibits 9-35, this Court will not consider that
argument for the first time on appeal. See Bryant v. Jones, 575 F.3d 1281, 1308
(11th Cir. 2009) (“It is well established in this circuit that, absent extraordinary
circumstances, legal theories and arguments not raised squarely before the district
court cannot be broached for the first time on appeal.”).
The district court’s decision to grant in part Emory’s motion to strike
Saunders’ unauthenticated exhibits was not an abuse of discretion. To be
admissible in support of or in opposition to a motion for summary judgment, a
document must be authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e) and the affiant must be a person through whom the
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exhibits could be admitted into evidence. 10A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2722, at 382-84
(3d ed. 1998). Because the exhibits were not properly authenticated, the district
court was not required to consider them in opposition to Emory’s motion for
summary judgment. Moreover, many of the stricken exhibits were authenticated
by either Emory or deponents in the case; therefore, striking Saunders’ exhibits did
not cause a substantial prejudicial effect. Because Saunders’ exhibits were not
properly authenticated and the decision to strike them did not cause a substantial
prejudicial effect, the district court did not abuse its discretion by striking the
exhibits.
II. Discriminatory Hiring
“Racial discrimination claims based on circumstantial evidence are
evaluated under the McDonnell Douglas burden shifting framework.” Burke-
Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). A plaintiff
establishes a prima facie case of disparate treatment by showing that: “(1) she is a
member of a protected class; (2) she was subjected to an adverse employment
action; (3) her employer treated similarly situated employees outside of her
protected class more favorably than she was treated; and (4) she was qualified to
do the job.” Id. Once the plaintiff establishes a prima facie case, “then the
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defendant must show a legitimate, non-discriminatory reason for its employment
action.” Id. Once the defendant meets that burden, “then the plaintiff must prove
that the reason provided by the defendant is a pretext for unlawful discrimination.”
Id.
A. CNS Position
Saunders concedes in her brief that the Clinical Nurse Specialist (CNS)
position is not in dispute in this case. Therefore, she has waived any argument that
Emory engaged in discrimination with regard to that position.
B. EC Position
The weight of the record indicates that the Educational Coordinator (EC)
position was never created. Saunders, however, appears to contend that the CNS
position, posted in December 2002 and filled in March 2003, was actually the EC
position. In support, she cites Emory’s admission in its Answer that “Paula
Funderburke held the position of Education Coordinator.” Regardless of the title
of the position, it is undisputed that Saunders did not formally apply for the
position posted in December 2002. Moreover, even assuming that a general issue
of material fact remains as to whether the EC position was created, Saunders’
claims in regard to the position are time barred.
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In its motion for summary judgment, Emory argued that, assuming the
position posted in December 2002 and filled in March 2003 was the EC and not the
CNS position, Saunders’ claims under Title VII and § 1981 are barred. Saunders
does not dispute that any claim relating to that position arising under Title VII is
time barred and thus has abandoned that claim. Furthermore, any claim relating to
that position arising under § 1981 is time barred.
Claims cognizable under § 1981 prior to the Civil Rights Act of 1991 are
subject to the state statute of limitations for personal injury torts. See Moore v.
Liberty Nat. Life Ins. Co., 267 F.3d 1209, 1219 (11th Cir. 2001). Because
Saunders’ failure-to-promote claim was cognizable under § 1981 prior to the Civil
Rights Act of 1991, Georgia’s two-year statute of limitations for personal injury
torts applies. See O.C.G.A. § 9-3-33 (2007). The position was posted in December
2002 and filled in March 2003. Saunders filed her complaint on December 26,
2006. Because Saunders did not file her complaint within the two-year statute of
limitations, any claim under § 1981 is time barred.
C. NDD Position
Saunders does not challenge the district court’s finding that she failed to
establish a prima facie case of discrimination related to this position because she
did not apply for the position. See Walker v. Prudential Prop. & Cas. Ins. Co., 286
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F.3d 1270, 1275 (11th Cir. 2002) (requiring plaintiff show that “she applied for
and was qualified for an available position” to establish adverse employment
action in failure-to-hire context) . Therefore, Saunders has waived any argument
relating to this position on appeal.
D. ANM Position
Emory concedes that Saunders established a prima facie case with respect to
the Acting Nurse Manager (ANM) position. Emory has proferred a legitimate non-
discriminatory reason for its decision, namely that the interview panelists for the
position unanimously rated Sampsel higher based on her better communication and
leadership skills and because she lacked the disciplinary record that Saunders had
amassed. Saunders claims the disparity in qualifications between herself and
Sampsel and Emory’s failure to follow its hiring policies demonstrate that Emory’s
proferred reason is pretextual.
“[A] reason is not pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason.” Springer v.
Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007)
(internal quotation marks omitted). In the context of promotions, we have held that
“a plaintiff must show that the disparities between the successful applicant’s and
his own qualifications were ‘of such weight and significance that no reasonable
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person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff.’” Id. (quoting Cooper v. Southern Co., 390 F.3d 695,
732 (11th Cir. 2004)). “Standing alone, deviation from a company policy does not
demonstrate discriminatory animus.” Mitchell v. USBI Co., 186 F.3d 1352, 1355-
56 (11th Cir. 1999).
Saunders has failed to demonstrate that Emory’s proferred reason is
pretextual. Emory’s decision to waive the minimum years of clinical experience
requirement in Sampsel’s favor and to prefer Sampsel over Saunders in spite of the
fact that Saunders had more clinical experience was reasonable in light of the
evidence showing that Sampsel was better qualified in terms of communication,
leadership, and workplace behavior, skills of great importance in a management
position. Therefore, Saunders has failed to demonstrate that Emory’s proferred
reason is false. Moreover, Saunders has failed to produce any evidence indicating
that discrimination was the actual reason behind the decision to hire Sampsel.
III. Retaliation
“To establish a claim of retaliation under Title VII or section 1981, a
plaintiff must prove that [s]he engaged in statutorily protected activity, [s]he
suffered a materially adverse action, and there was some causal relation between
the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir.
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2008). “After the plaintiff has established the elements of a claim, the employer
has an opportunity to articulate a legitimate, nonretaliatory reason for the
challenged employment action as an affirmative defense to liability.” Id. “The
plaintiff bears the ultimate burden of proving retaliation by a preponderance of the
evidence and that the reason provided by the employer is a pretext for prohibited
retaliatory conduct.” Id.
The scope of “adverse employment actions” is broader in the anti-retaliation
context than in the anti-discrimination context. In the anti-retaliation context,
adverse employment actions are those that might dissuade a reasonable worker
from making or supporting a charge of discrimination. Burlington N. & Santa Fe.
Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006). This Court
recognized in Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008), that
Burlington Northern broadened the type of conduct actionable in a retaliation claim
and effectively rejected our previous requirement of showing an ultimate
employment decision or substantial employment action to establish an adverse
action for a retaliation claim. In order to establish the necessary causal link, “a
plaintiff merely has to prove that the protected activity and the negative
employment action are not completely unrelated.” Goldsmith, 513 F.3d at 1278
(quotation marks omitted).
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The district court divided possible retaliatory actions taken after the filing of
Saunders’ EEOC charge into two groups: formal discipline and changes in job
duties and perks. Because this is a convenient way to analyze Saunders’
complaints, we will proceed in the same fashion.
A. Formal Warnings
Saunders contends that she was subjected to disciplinary warning meetings
in December 2005 and January 2006 in retaliation for filing her initial EEOC
charge. Assuming, as the district court found, that formal disciplinary warning
meetings might well dissuade a reasonable employee from making or supporting a
charge of discrimination, the burden passed to Emory to articulate a legitimate
non-retaliatory reason for the warnings. The record supports Emory’s claim that
the meetings were motivated by numerous complaints about Saunders’ workplace
performance or attitude. Saunders has produced no evidence indicating the
proffered reason is pretextual. The four month time lag between the filing of her
complaint with the EEOC and the disciplinary warning meetings, especially
standing alone, is far too attenuated to support the inference that Emory’s
articulated reason is actually pretext for prohibited retaliation.
B. Changes in Job Duties and Perks
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Saunders also contends that she suffered a decrease in the frequency with
which she performed charge nurse, in-service, and precepting duties and changes
to her holiday and vacation schedule in retaliation for filing her initial EEOC
charge. It is undisputed that the schedule changes were applied not just to
Saunders but to all part-time nurses in the emergency department; therefore, Emory
has proferred a non-retaliatory reason for the changes in Saunders’ schedule.
Saunders has no produced no evidence indicating that Emory’s proferred reason is
pretext for illegal retaliation. It is also undisputed that the decrease in certain
duties has not resulted in tangible effects such as a decrease in pay or failure to
maintain her current certification. In the wake of Burlington Northern, however,
the employer’s conduct need not reach the level of an ultimate or substantial
employment action to constitute actionable adverse conduct. The conduct only
need be serious enough that it might dissuade a reasonable worker from making or
supporting a charge of discrimination.
The Supreme Court’s discussion in Burlington Northern provides some
insight into when an employer’s conduct might dissuade a reasonable worker from
making or supporting a charge of discrimination. In Burlington Northern, the
Supreme Court concluded that even a total “reassignment of job duties is not
automatically actionable.” 548 U.S. at 71; 126 S. Ct. at 2417. Discussing
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reassignments, the Court indicated that the nature of work being performed or the
necessity of greater qualifications for certain duties was relevant to whether a
reassignment was actionable. Id. In this case, Saunders has not suffered a total
reassignment, but simply a decrease in certain responsibilities. There is no
evidence that she has been assigned more difficult or arduous work in lieu of these
responsibilities. Furthermore, the record indicates that these responsibilities are
part of the normal duties of a Level IV registered nurse; there is no evidence that
these responsibilities require greater qualifications or carry greater prestige than
any of the other duties of a Level IV registered nurse. Because this slight decrease
in the frequency with which Saunders performs certain job responsibilities does not
rise to the level of actionable retaliation, Saunders cannot establish a prima facie
case based on those actions.1
IV. Hostile Work Environment
Title VII protects workers from a “workplace . . . permeated with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct.
1
We also note that there is no evidence supporting Saunders’ further allegations that she was
subjected to constructive discharge, was denied the opportunity to apply for a promotion because
she was placed on a “Performance Improvement Plan,” or received poor performance appraisals.
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367, 370 (1993) (citation omitted). “This court has repeatedly instructed that a
plaintiff wishing to establish a hostile work environment claim show: (1) that [s]he
belongs to a protected group; (2) that [s]he has been subject to unwelcome
harassment; (3) that the harassment must have been based on a protected
characteristic of the employee, such as national origin; (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 either a theory of vicarious or
of direct liability.” Miller v. Kentworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). In order to be actionable, the conduct in question must be “severe or
pervasive enough to create an objectively hostile or abusive work environment–an
environment that a reasonable person would find hostile or abusive.” Harris, 510
U.S. at 21, 114 S. Ct. at 370. Moreover, the plaintiff must “subjectively perceive
the environment to be abusive.” Id. “In evaluating the objective severity of the
harassment, we consider, among other factors: (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.” Miller, 277 F.3d at
1276.
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The only conduct clearly presented by Saunders’ for our consideration on
this claim is three black-and-white motivational signs allegedly posted in employee
areas and complaints made against Saunders by other employees. Saunders has
presented no evidence that would allow a reasonable juror to conclude the signs are
objectively racially harassing. First, it is hardly clear from the record that the signs
are intended to depict black nurses at all. Second, assuming they do, the signs do
not display any racially offensive motivation. Thus, it is impossible for the signs
to be “severe or pervasive” enough to create an objectively hostile or abusive work
environment. Saunders has also presented no evidence that would indicate that the
complaints from other employees were based on her race. The record indicates
that these complaints were directed towards Saunders’ workplace behavior and
attitude toward others without any reference to race. Moreover, Saunders concedes
that she has not been subjected to any racially offensive comments. Because the
complained of conduct is either not based on Saunders’ race or not severe or
pervasive enough to create an objectively hostile or abusive work environment, the
district court did not err by entering summary judgment against Saunders on her
hostile work environment claim.
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In this case, Saunders has not identified any basis for disturbing the district
court’s judgment. Accordingly, we affirm the grant of summary judgment in favor
of Emory.
AFFIRMED.
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