[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 31, 2005
No. 05-10697
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-61722-CV-WPD
SANDRA E. VAN DER MEULEN,
Plaintiff-Appellant,
versus
BRINKER INTERNATIONAL,
d.b.a. Chili's Restaurant,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 31, 2005)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Sandra Van der Meulen, a former employee of Brinker International, d.b.a.
Chili’s Restaurant (“Chili’s”), appeals the grant of summary judgment for Chili’s
on her claim that Chili’s retaliated against her for complaining about sexual
harassment in violation of 42 U.S.C. § 2000e-2(a)(1). She argues that her
supervisor’s threats constituted an adverse employment action and that her
supervisor’s threats, combined with the work environment, constituted constructive
discharge. The adverse employment action claim was not preserved for appeal and
also fails as a matter of law. The constructive discharge claim fails because Van
der Meulen did not present evidence that would show that the environment was so
intolerable that a reasonable person would be compelled to resign. The district
court’s grant of summary judgment is, therefore, AFFIRMED.
I. BACKGROUND
Van der Meulen, a female, filed a complaint in Florida state court alleging
that her former employer, Chili’s, retaliated against her for complaining about
sexual harassment under the Florida Civil Rights Act, Fla. Stat. §§ 760.01-.11
(“FCRA”). Van der Meulen alleged, inter alia, that while she was employed at
Chili’s as a mid-manager/server, her immediate supervisor, Brian Marks, subjected
her to a sexually hostile environment and discriminated against her based on her
gender. R1-1 at Exh. A, Complaint at 2-3. She also alleged that Chili’s had
retaliated against her because she objected to Marks’s treatment and that she was
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constructively discharged. She claimed that she suffered emotional anguish and
distress as a result of the treatment and sought compensatory and punitive
damages.
Chili’s removed the case to federal court and, in answer to the complaint,
denied that it had discriminated or retaliated against, or harassed Van der Meulen.
Following discovery, Chili’s moved for summary judgment. It argued that Van der
Meulen’s retaliation claim failed because she quit before she had given Chili’s an
opportunity to work through any issues, and because the circumstances were not
sufficient to compel a reasonable person to resign. It maintained that a reasonable
person would have found Chili’s general manager, Andy York, and his boss, Tony
Viola, responsive to her complaints and that they had been responsive to Marks’s
previous remarks. In support of their motion, Chili’s submitted Van der Meulen’s
deposition, York and Viola’s sworn declarations, and other exhibits.
In her deposition, Van der Meulen testified that, after she began working for
Chili’s in 2000, she was promoted to a “key employee”, in which she assisted a
night restaurant manager. R1-24 at 54. She was told by York, in May 2002, that
she was one of the best key employees in the restaurant, and she responded that she
was interested in a management position and gave him her resume. She was
subsequently scheduled for more key employee shifts but was unaware of any
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available management positions at the restaurant where she was employed.
Van der Meulen said that Marks began working for Chili’s during 2002.
She said that, while she was waiting for food at the kitchen pass-through in May,
Marks made “sexual” comments to the cook about “doing your mother” while
looking at Van der Meulen. Id. at 111-12. She said that she told Marks that she
was offended by the remark, but he just ignored her and she did not report the
incident to York. Sometime in late May or early June, Marks told Van der Meulen
that he had previously worked as a stripper and began doing a “strip tease kind of
dance” with “all kinds of thrusts.” Id. at 109, 116-20, 122-23. Van der Meulen
reported this episode to one of the other managers, Bill Cook, who told her that he
would handle it.
On 14 June 2002, Van der Meulen stated that she was working a key
employee shift and asked Marks what they were going to do about lunch for the
employees, because it was customary for managers to make lunch for the
employees on Fridays. When she asked about the lunch plans, she found Marks in
the manager’s office with another employee, Michael Creech. In response to Van
der Meulen’s question, Marks said “Deez nuts,” under his breath, and Creech
started laughing. Id. at 126-28. She asked him again what they were having for
lunch, and Marks looked at her and repeated “Deez nuts.” Id. at 127. She asked
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him a third time, and he pointed to his groin area, thrust it out, and again said
“Deez nuts.” Id. at 127-28, 150-51.
Van der Meulen testified that she left the office, started crying, and went to
the bathroom to compose herself. Two of the other servers joined Van der Meulen
at the bathroom to check on her and she told them what had happened. She said
that Marks’s comment and gesture made her feel hurt, angry, offended, and
betrayed, and that Creek’s laughter made her feel inferior because he was laughing
at her when she was supervising him. She stayed in the bathroom for about 15
minutes and then came out and told Marks that she needed to talk to him outside.
After they both went outside, she told him that what he had done was wrong, that
he should be ashamed of himself, and that she was hurt and offended. Marks
apologized and she went back to work and finished her shift.
In her deposition, Van der Meulen admitted that she did not report this
incident to York, but noted that the next time she saw York, he asked her to come
into his office and told her that he had found out that Marks had done something
inappropriate and that he needed to report it to his boss, Viola, to cover himself.
She told York that he “ha[d] to do what [he] ha[d] to do”, and then his demeanor
changed, and he said “I got to tell you, if you report this, your chances of going to
management is going to be very slim. Who is going to want to work with someone
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who screams sexual harassment? What manager is going to want to work with
you?” Id. at 136. She felt betrayed by his statement which she believed implied he
had a choice about reporting the incident and that, if she reported it, her chances of
going into management would be affected. Later, York called her, told her Viola
was available, and asked her if she wanted to speak with Viola. She didn’t know
what to say and told him she needed to think about it. When Van der Meulen
returned to work, York told her that they would not “talk about this,” and Van der
Meulen agreed, because there were rumors running around the restaurant. Id. at
147.
Van der Meulen admitted that, during the time between the 14 June incident,
and when she quit, about three weeks later, Marks did not direct any inappropriate
behavior or language toward her. Marks never touched her inappropriately or
physically threatened her. Nevertheless, Van der Meulen testified that, after her
conversation with York, she was not scheduled for as many key shifts as before,
the issue of her going into management was avoided, and the managers no longer
had time to show her things on her free time. She also felt that York withheld her
resume from management consideration. She did not know of any management
positions that became available while she was working at Chili’s.
According to Van der Meulen, about three weeks after 14 June, one of the
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servers told her that Marks had warned him not to talk to her because she had
claimed sexual harassment. On that day, Marks was in the restaurant, drinking in
the dining room and talking with other employees. Another employee, Jen Kieser,
told her that Marks was talking about the 14 June incident. Van der Meulen
finished her shift and then informed the manager on duty that she quit. She
testified that she quit because the issue had not been “dropped [,] wasn’t being
investigated,” and because the male servers at the restaurant had formed a “good
old boy[s] network” that continued to focus on her reaction to the incident with
Marks. Id. at 162-63. Her continued reaction to the 14 June incident also played a
role in her decision to quit.
Van der Meulen acknowledged that York called her at home the next
morning to ask if there was anything he could do, but she told him she was still
upset and to call back. Viola called Van der Meulen the following day, and told
her that he needed to take a report over the phone. He asked her if she wanted to
come back to the restaurant, but she stated that she could not work there if the
same people were still there. Viola asked her if she wanted to work at the Port St.
Lucie restaurant, but she said it was too far to drive for the money that she would
be paid. She testified that, although she would have accepted a management
position at the Port St. Lucie store, she did not talk to Viola about such a position.
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Van der Meulen claimed that when she left Chili’s she was “emotionally
distraught.” Id. at 43. She said that she did not see a psychiatrist, psychologist, or
a mental health therapist because she could not afford it, but testified that she
talked to her pastor twice about the events. She stated she did not want to return to
employment at Chili’s, even though both York and Marks no longer worked there.
York stated in his declaration that, upon investigating the 14 June incident,
he determined that Marks had acted inappropriately and contrary to Chili’s
guidelines and policies when he made an inappropriate comment to Van der
Meulen. Viola declared that he had learned of the incident from York. York and
Viola both stated in their declarations that York had prepared a summary of the
incident that was signed by York, Marks, and Viola; counseled Marks regarding
proper behavior; and given Marks a written warning for violating Chili’s policies.
York said that Van der Meulen did not complain to him about any inappropriate
behavior by Marks between the time of the incident and Van der Meulen’s
resignation.
In opposition to the motion for summary judgment, Van der Meulen argued
that she was constructively discharged and that Chili’s did not attempt to rectify
the situation, but rather caused her to quit by making her “the troublemaker” and
keeping Marks employed, even after another manager, Bill Cook, labeled Marks “a
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sexual harassment risk.” R1-29 at 13. She maintained that she suffered the
adverse employment action of constructive discharge and that the causal link
between her complaint and her discharge was York’s statements “that her
complaint w[ould] hurt her chances to go into management, that no one would
want to work with her,” and the subsequent reduction in her key employee shifts.
Id. at 12-13. She did not specifically argue that York’s statements were a separate,
actionable adverse employment action. She stated that she was bringing her action
against Chili’s under Title VII, apparently for the first time, and under the FCRA.
In support, she filed the depositions of former Chili’s employee Kieser and
manager Bill Cook.
Kieser testified during her deposition that she worked as a server and key
employee at Chili’s. She stated that Marks “was always hitting on the younger
[female employees]”, and making “sexual comments” about their bodies and the
way that they were dressed. R1-30, Kieser Depo. at 9-12. One night, Marks
invited some employees over to his house and showed them pornography on his
TV. Kieser testified that she heard Marks tell people about the 14 June incident
with Van der Meulen, and that eventually, everyone at Chili’s restaurant was aware
of the incident. A few days after the June 14 incident, Kieser was at a bar with
Van der Meulen, and the bartender asked Van der Meulen if she was the “these
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nuts” girl. Id. at 19. Finally, Kieser noted that, on the day that Van der Meulen
quit, Marks, who was visiting the Chili’s bar as a guest, was drinking with some
other Chili’s employees. Marks was talking so loudly and using such foul
language that Kieser asked him to stop. When Marks continued with his offensive
behavior, Kieser asked a manager to intervene and Marks subsequently left.
By deposition, Cook testified that he had worked for Chili’s as an assistant
general manager. He felt that Marks “was a sexual harassment risk” and notified
his superiors, including Viola, of his concerns. Id. at 10-11, 17. He observed that
Marks’s choice of words and vocabulary was improper and that he inappropriately
touched female employees. Four female bartenders and other employees
complained to him about Marks’s comments and behavior toward them. Cook said
that he had heard that Van der Meulen had complained about an incident involving
Marks. Van der Meulen also submitted excerpts from Marks’s personnel file,
documenting the 14 June incident, at Chili’s.
In reply to Van der Meulen’s response to summary judgment, Chili’s did not
object to Van der Meulen’s characterization of her case as raising Title VII claims.
The district court granted summary judgement in favor of Chili’s. Referring
to Title VII, the court found that a hostile work environment did not exist as a
matter of law and that Van der Meulen’s retaliation claim failed because there was
10
no adverse employment action or constructive discharge. Specifically, the court
found that no adverse employment action occurred because her subjective
allegation of not receiving as many key assignments as she had previously was not
substantial enough, and because she did not show that there was a management
opening that she could have been considered for while employed by Chili’s. The
court further found that the working conditions did not rise to the level of being so
intolerable as to constitute a constructive discharge, especially in light of Chili’s
remedial efforts post-termination. The district court did not explicitly rule on Van
der Meulen’s claims under the FCRA, but implicitly granted summary judgment on
these claims as well. Van der Meulen’s motion for reconsideration was denied.
On appeal, Van der Meulen argues that she presented evidence to show that
Chili’s retaliated against her by threatening her promotional potential and
constructively discharged her through the threats and a hostile work environment.
II. DISCUSSION
We review the grant of summary judgment de novo, viewing the evidence in
the light most favorable to the nonmoving party. Johnson v. Governor of Fla., 405
F.3d 1214, 1217 (11th Cir. 2005) (en banc). Summary judgment should be granted
only when “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
11
any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
“Title VII makes it an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to h[er] compensation, terms,
conditions, or privileges of employment, because of such individual’s . . . sex.”
Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1279 (11th Cir. 2003)
(per curiam) (internal quotation omitted); see also 42 U.S.C. §§ 2000e-2(a)(1). It
is also unlawful for an employer to discriminate against an employee because she
has opposed an unlawful employment practice. 42 U.S.C. §§ 2000e-3(a).
“To establish a prima facie case of retaliation under Title VII, a plaintiff
must show that (1) he engaged in statutorily protected expression; (2) he suffered
an adverse employment action; and (3) there is some causal relation between the
two events.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.
2001). To prove that an adverse employment action has taken place, “an employee
must show a serious and material change in the terms, conditions, or privileges of
employment” that is “materially adverse as viewed by a reasonable person in the
circumstances.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.
2001). “[T]he action must either be an ultimate employment decision or else must
meet some threshold level of substantiality.” Stavropoulos v. Firestone, 361 F.3d
12
610, 616-17 (11th Cir. 2004), cert. denied, U.S. , 125 S. Ct. 1850 (2005)
(internal quotation omitted). “Constructive discharge qualifies as an adverse
employment decision.” See Poole v. Country Club of Columbus, Inc., 129 F.3d
551, 553 n.2 (11th Cir. 1997).
A. York’s statements as an adverse employment action
Van der Meulen argues that she presented evidence from which a reasonable
fact finder could conclude that Chili’s retaliated against her by threatening her
regarding her promotional potential if she reported the sexual harassment,
specifically through York’s threat that, if she reported Marks’s inappropriate
conduct, her chances of going to management were going to be slim and that no
one would want to work with her, and York’s subsequent phone call asking her if
she wanted to pursue the report any further.
As an initial matter, Van der Meulen did not properly preserve this issue for
appeal. Although Van der Meulen referred to York’s comments, she never argued
in her complaint, in opposition to summary judgment, or on reconsideration, that
his comments, standing alone, constituted an adverse employment action but that
the comments were part of the circumstances constituting her constructive
discharge. The district court cited York’s statements when discussing Van der
Meulen’s constructive discharge claim, but did not address whether York’s
13
comments constituted an adverse employment action separately. R1-33 at 6-7.
Generally, we do not consider an issue or theory on appeal that was not
raised in the district court. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004); see Algernon Blair Group, Inc. v. United States Fid.
and Guar. Co., 821 F.2d 597, 602-03 (11th Cir. 1987) (confirming that factual
assertions presented for the first time on appeal could not be used to defeat
summary judgment, even where the facts were in the record at the time of summary
judgment).
To the extent that the issue is not waived, the claim still fails, because
York’s “threat” did not amount to an adverse employment action. In Doe v.
Dekalb County Sch. Dist., 145 F.3d 1441, 1448-51 (11th Cir. 1998) (discussing the
ADA), we recognized that the test for adversity should be objective, and that an
employee’s subjective feelings about an employer’s actions should not be
considered. Even accepting Van der Meulen’s testimony, there is no objective
basis for finding York’s statements constituted an adverse employment action.
York made only one “threatening” statement to Van der Meulen that her chances of
going into management might be affected if she reported the incident. See R1-24
at 134-43, 146-49. This statement did not cause any objective change in her
employment. She worked for three weeks after the threatening statement,
14
acknowledged that she and York agreed not to discuss the incident further, and
does not claim that York or anyone else at Chili’s threatened her further. See id.
Van der Meulen does not argue that she suffered a cut in pay or any change in her
benefits or position.1 She acknowledged that no management positions became
available while she was working at Chili’s, and that both York and Viola attempted
to get her to come back to work after she quit. Id. at 91-92, 168-172, 175, 178.
Additionally, Van der Meulen did not complain about or report the alleged
threats to another Chili’s manager, even when she was given a chance to talk to
Viola on the phone after the threats. Thus, Chili’s had no time to remedy the
situation. Id. at 144. See, e.g., Coates v. Sundor Brands, Inc., 164 F.3d 1361,
1364-66 (11th Cir. 1999) (per curiam) (holding that a hostile work environment
plaintiff must notify the employer of the harassment and give the employer a
chance to remedy the situation). Further, although Van der Meulen likens her case
to Wideman v. Wal-Mart Stores, Inc.,141 F.3d 1453 (11th Cir. 1998), in which we
held that adverse actions falling short of ultimate employment decisions can be
actionable under Title VII, we recognized, but did not establish, a level of
substantiality that must be met for unlawful discrimination to be cognizable under
1
Van der Meulen testified that she was scheduled for fewer key employee shifts after
York’s threat; however, she does not argue on appeal that this change in her schedule was an
adverse employment action. See R1-24 at 174-75.
15
the anti-retaliation clause. Id. at 1456. In Wideman, we concluded that the actions
of which Wideman had complained were collectively sufficient to constitute
prohibited behavior. Id. Those actions included improperly listing her as a
no-show on a day she was scheduled off, and requiring her to work when she
brought the error to the attention of her supervisor; giving her written reprimands,
for the first time in eleven months, which resulted in a one-day suspension;
soliciting employees for negative comments on her performance; failing to
schedule her for work; threatening to shoot her in the head; and delayed
authorizing medical treatment for an allergic reaction she was having. Id. at 1455,
1456. Van der Meulen only alleged one statement made threatening her future
management aspirations, and she was not suspended, given a formal reprimand,
harassed or threatened after her first meeting with York, and did not have her
schedule reduced. The adverse action alleged by Van der Meulen is highly
insubstantial in comparison to the misconduct alleged in Wideman. Although she
may have been emotionally distraught over York’s comments regarding her future
management potential, the record shows that these comments had no real effect on
her employment, and thus, did not constitute an adverse employment action.
B. Evidence of constructive discharge
16
Van der Meulen also argues that York’s threats, combined with Marks’s
continued drunken ranting about the incident, and other employees coming up to
her and telling her that Marks was discussing the incident, created an environment
where a reasonable person in her position would have felt compelled to resign.
She contends that her key employee duties were reduced and signaled that her
chance of a management position had been derailed, and that it is a disputed issue
of material fact as to whether the efforts Chili’s took to rectify the situation were
transparent since Marks remained employed.
“A constructive discharge occurs when a discriminatory employer imposes
working conditions that are so intolerable that a reasonable person in the
employee’s position would have been compelled to resign. Fitz v. Pugmire
Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (citation and internal
quotation marks omitted). Because the standard of proof for a constructive
discharge claim is higher than that for a hostile work environment claim, the
plaintiff must show more than that she was subjected to actionable harassment.
Walton, 347 F.3d at 1282. “A constructive discharge will generally not be found if
the employer is not given sufficient time to remedy the situation.” Kilgore v.
Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996) (affirming
summary judgment where the employer began an investigation of the plaintiffs’
17
complaint on a Friday and attempted to meet with the plaintiffs on the following
Tuesday, and where the plaintiffs did not return to work after advising the
employer of their complaints). “Part of an employee’s obligation to be reasonable
is an obligation not to assume the worst, and not to jump to conclusions too fast.”
Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987) (affirming
summary judgment where the employee quit after one day in what she perceived as
an unacceptable position).
In Fitz, 348 F.3d at 979, we upheld summary judgment for the employer
where the plaintiff claimed that his employer’s racial discriminatory conduct
compelled him to resign. One of the facts used by the plaintiff to support his
position was his co-workers statements that his employer planned to fire him
because of his race sometime in the future. Id. at 978. Noting that the plaintiff
never confronted his employer about the alleged plot, we “decline[d] to reach a
holding that would encourage speculative litigation” since the employer might
“never carry out the plan.” Id. at 978 & n.4. In contrast, we reversed the grant of
summary judgment for the employer in the constructive discharge claim in Poole
where the employee was relieved of all of her duties, moved to an office with only
a chair and no desk, and her employer instructed other employees not to speak with
her. Poole, 129 F.3d at 552, 553.
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The working conditions that Van der Meulen argues were intolerable consist
of York’s statement that her promotional potential would be negatively effected if
she reported the sexual harassment and a coworker’s statement, three weeks later,
that Marks was in the Chili’s bar talking about the incident in which he made the
“Deez nuts” comment and inappropriately gestured toward her. Although she
claims that the environment was such that a reasonable person would feel
compelled to resign, she specifically testified that no sexual harassment occurred
between her first conversation with York about Marks’s harassment and the day
that she quit and that she quit because the issue had not been dropped and she felt it
was not being investigated. The evidence, however, including documentation filed
by Van der Meulen, indicates that Marks’s inappropriate comments and behavior
were investigated and Marks was reprimanded for the inappropriate comment he
made to her on 14 June. R1-24 at 164-65, Exh. 8.
The actions taken by Chili’s when made aware of Marks’s inappropriate
behavior appear successful, in that Van der Meulen admittedly suffered no further
harassment. Although she was upset over hearing that Marks was still discussing
the incident with other employees, she did not return to work after becoming aware
that Marks was discussing the incident. Under the circumstances, she acted
unreasonably in quitting without giving Chili’s an opportunity to respond, as they
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had successfully done previously. Her constructive discharge claim amounts to
two isolated incidents, three weeks apart. Her case is akin to the claims in Fitz, in
that her employer’s threats never materialized. She was never denied the
opportunity to advance to a management position, and in fact, Chili’s managers
attempted to mend the employment relationship after she quit. Under these
circumstances, a reasonable person would not have felt compelled to resign.
III. CONCLUSION
Van der Meulen failed to establish a retaliation claim as a matter of law. She
never argued in the district court that her supervisor’s threat constituted an adverse
employment action, but even assuming this argument is properly preserved, the
threat was never carried out, and did not objectively change any of the terms and
conditions of her employment such that it can be considered an adverse
employment action. Even combined with her other complaints about the work
environment, a reasonable person would not have felt compelled to resign,
especially in light of Chili’s previous successful measures to stop the harassment,
and the fact that she never gave Chili’s the opportunity to remedy the final incident
she claims compelled her to resign.
AFFIRMED.
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