[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-17224 ELEVENTH CIRCUIT
NOVEMBER 20, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-22170-CV-DLG
MICHAEL NETTLES,
Plaintiff-Appellant,
versus
LSG SKY CHEFS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 20, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Michael Nettles appeals the district court’s grant of summary judgment in
favor of his former employer, LSG Sky Chefs (LSG), in his action alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and
42 U.S.C. § 1981. Nettles, an African American, asserts LSG discriminated
against him and harassed him based on his race, and then retaliated against him
after he complained of the discriminatory and harassing behavior. On appeal,
Nettles contends the district court erred in granting summary judgment on his race
discrimination and retaliation claims because LSG’s actions separately and
collectively rose to the level of adverse employment actions or amounted to a
constructive discharge, and on his harassment claim because LSG’s conduct
collectively amounted to an abusive working environment.1
We review a district court’s grant of summary judgment de novo, and view
all the evidence in the light most favorable to the nonmoving party. Maniccia v.
Brown, 171 F.3d 1364, 1367 (11th Cir. 1999). The same prima facie case
standards apply to Title VII and § 1981 discrimination claims. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). To establish a prima
facie case of discrimination, a plaintiff must show: (1) he is a member of a
1
Because we find that Nettles did not establish a prima facie case of employment
discrimination, we do not address his argument on appeal regarding pretext.
2
protected class; (2) he was qualified for the job; (3) he suffered an adverse
employment action; and (4) he was replaced by someone outside the protected
class or was treated less favorably than a similarly situated individual outside the
protected class. Maynard v. Bd. of Regents of the Div. of Univs. of Fla. Dep’t of
Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). To establish a prima facie case of
retaliation, a plaintiff must show: (1) he engaged in protected activity; (2) his
employer was aware of that activity; (3) he suffered an adverse employment
action; and (4) the action was causally related to the protected activity. Maniccia,
171 F.3d at 1369. “An adverse employment action is an ultimate employment
decision, such as discharge or failure to hire, or other conduct that ‘alters the
employee’s compensation, terms, conditions, or privileges of employment,
deprives him or her of employment opportunities, or adversely affects his or her
status as an employee.’” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th
Cir. 2000) (citation omitted). Conduct that falls short of an ultimate employment
decision must meet “some threshold level of substantiality” in order to be
actionable. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.
1998). “A constructive discharge occurs when a discriminatory employer imposes
working conditions that are ‘so intolerable that a reasonable person in [the
3
employee’s] position would have been compelled to resign.’” Fitz v. Pugmire
Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (citation omitted).
Nettles put forth the following evidence to show he suffered adverse
employment actions: (1) LSG undermined his authority in front of customers,
peers, and subordinates; (2) LSG excluded him from a business meeting with LSG
chairman Hans Rech and denied Nettles the opportunity to make a presentation at
a meeting; (3) LSG denied administrative support for his staff trip to Puerto Rico;
(4) LSG evaluated him as “Fully Meets Expectations” rather than “Fully Exceeds
Expectations;” and (5) LSG offered him the position of Northeast Sector Vice
President on terms and conditions less favorable than those offered to other Vice
Presidents. After a review of the record, we conclude that none of these actions,
either separately or collectively, meet the threshold level of substantiality needed
to show an adverse employment action or a constructive discharge. Nettles’
failure to show he suffered an adverse employment action is fatal to both his
discrimination and retaliation claims.
To establish a prima facie case of harassment, a plaintiff must show that:
(1) he belongs to a protected group; (2) he has been subject to unwelcome
harassment; (3) the harassment was based on a protected characteristic of the
employee; (4) the harassment was sufficiently severe or pervasive to alter the
4
terms and conditions of employment and create a discriminatory abusive working
environment; and (5) the employer is responsible for such environment under
either a theory of vicarious or direct liability. Mendoza v. Borden, Inc., 195 F.3d
1238, 1245 (11th Cir. 1999) (en banc).
Nettles claims his direct superior, Dennis Mancini, harassed him by
undermining him, disagreeing with him, denying him training, and unfavorably
comparing minority staff members with non-minority staff members. After a
review of the record, we conclude there is no evidence any of these actions were
motivated by race. The only race-related statements Nettles alleges were not
directed at Nettles and were made outside of Nettles’ presence. Nettles’ failure to
show any of these actions were motivated by his race is fatal to his harassment
claim.
Nettles is unable to establish a prima facie case of discrimination,
retaliation, or harassment. The district court did not err in granting summary
judgment.
AFFIRMED.
5