[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 2, 2006
No. 05-16737 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00420-CV-2-MHT-CSC
TAMIKA J. AUSTIN,
LA’KEYSHA JOHNSON,
TRACY LOUDER,
Plaintiffs-Appellants,
versus
THE CITY OF MONTGOMERY,
BOBBY BRIGHT, official capacity as Mayor of Montgomery,
JIM MORRISON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 2, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Tamika Austin, La’Keysha Johnson, and Tracy Louder, all
African-American females, appeal the district court’s order granting summary
judgment in favor of their employer, the City of Montgomery (City), on their
claims of race discrimination, hostile work environment, retaliation, and pattern
and practice brought pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e-2(a), 3(a), and 42 U.S.C. § 1981. Louder also appeals the
district court’s decision not to exercise supplemental jurisdiction over her state law
assault claim. After review, we affirm.
I. DISCUSSION
A. Title VII and § 1981 claims
We review a district court’s grant of summary judgment de novo. Dees v.
Johnson Controls World Servs., Inc., 168 F.3d 417, 421 (11th Cir. 1999). After
reviewing the evidence and all factual inferences in the light most favorable to the
non-moving party, we must determine if genuine issues of material fact exist. Id.
Title VII assures equality of employment opportunities by eliminating those
practices that discriminate on the basis of race. See 42 U.S.C. § 2000e-2(a);
McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817, 1823 (1973). Section 1981
protects an individual’s right to be free from racial discrimination in the “making,
performance, modification, enforcement, and termination of contracts.” 42 U.S.C.
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§ 1981. We have recognized the analysis of claims under both laws is essentially
the same. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)
(noting that because Title VII and § 1981 have the same requirements of proof and
use the same analytical framework, we analyze race discrimination claims under
both laws simultaneously). Thus, the analysis of Appellants’ Title VII claims
applies equally to their claims brought under § 1981.
1. Austin’s disparate treatment claim
In order to establish a prima facie case of disparate treatment, Austin must
demonstrate: (1) she belongs to a class protected under Title VII; (2) she was
qualified for the job; and (3) a similarly-situated employee engaged in the same
misconduct that she engaged in, but was disciplined differently. Lathem v. Dep’t
of Children and Youth Serv., 172 F.3d 786, 792 (11th Cir. 1999). As for the third
requirement, “[t]he relevant inquiry is not whether the employees hold the same
job titles, but whether the employer subjected them to different employment
policies.” Id. at 793. “If a plaintiff fails to show the existence of a similarly
situated employee, summary judgment is appropriate where no other evidence of
discrimination is present.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997).
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Austin failed to demonstrate a prima facie case of disparate treatment
because she did not identify a similarly-situated employee who engaged in
excessive phone usage like herself but was not similarly disciplined. Austin
purported to identify Cheryl Daniel as a comparator, but she did not proffer any
evidence showing Daniel engaged in or was accused of similar misconduct. Austin
submitted Daniel’s phone log, but the log covered a different and longer time
period than Austin’s phone log, and contained no analysis of Daniel’s calls or
indication of how many of her calls were personal in nature. No other evidence of
discrimination exists to support a finding of disparate treatment. Austin was
disciplined for conduct—excessive phone usage—that she admitted to and was
clearly a violation of City policy. Thus, since Austin failed to show a similarly-
situated comparator, the district court did not err in granting summary judgment to
the City on her disparate treatment claim.
2. Austin’s retaliation claim
To establish a prima facie case of retaliation, Austin must show: (1) she
engaged in statutorily protected expression; (2) she suffered an adverse
employment action; and (3) there was some causal relationship between the two
events. Id. at 1566. “Once a plaintiff has established a prima facie case, the
employer then has an opportunity to articulate a legitimate, non-retaliatory reason
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for the challenged employment action.” Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001). The plaintiff bears the ultimate burden of proving by
a preponderance of the evidence that the reason provided by the employer is a
pretext for retaliatory conduct. Id.
Here, the district court assumed Austin met her prima facie case of
retaliation. Since the City offered legitimate, non-discriminatory reasons for
suspending Austin as she had admittedly made over 72 hours of personal phone
calls in a three and one-half month period, conduct forbidden by City policy, she
bore the ultimate burden of showing the City’s reason for suspending her was a
pretext for discrimination. See Pennington, 261 F.3d at 1266.
To show pretext, Austin pointed to: (1) unsigned counseling memos in her
personnel file, which she alleged were false; (2) the City’s progressive discipline
policy and the City’s alleged failure to follow it in her case; and (3) a statement
from Lloyd Faulkner, the City’s director of finance, that most employees violated
the phone policy. None of these arguments are availing as they are factually
incorrect. First, the unsigned counseling memos were not used in taking
disciplinary action against Austin, and she was aware of this. Next, the record
shows the City’s progressive discipline policy is not mandatory and does not apply
to certain situations, such as using City property for personal use. Finally,
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Faulkner’s statement that most employees violated the phone policy is taken out of
context. Faulkner testified that personal phone calls, though they may occasionally
occur, should not be excessive, and that an employee observed making excessive
phone calls would be dealt with accordingly. None of the reasons proffered by
Austin cast doubt on the City’s decision to suspend her because excessive personal
phone use is against City policy, and Austin admitted her misconduct.
Accordingly, the district court did not err in granting summary judgment to the
City on Austin’s retaliation claim because she could not establish pretext.
3. Johnson and Louder’s hostile work environment claims
The employee has the burden of proving a hostile work environment.
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995). To
establish a hostile work environment, she must demonstrate: (1) she belongs to a
protected group; (2) she has been subjected to unwelcome harassment; (3) the
harassment was based on the protected characteristic, here race; (4) the harassment
was sufficiently severe or pervasive to alter the terms and conditions of
employment and thus create a discriminatorily abusive work environment; and
(5) the employer is responsible for that environment under a theory of either direct
or vicarious liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002).
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The fourth requirement has both subjective and objective components.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc). The
employee must personally perceive the harassment as severe or pervasive. Id.
Additionally, the environment must be one that a reasonable person in the
employee’s position would find hostile or abusive. Id. The factors a court
considers in evaluating the objective component include: “(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.” Id.
As for Johnson’s de facto demotion, construed as a hostile work
environment claim, the district court did not err in granting summary judgment for
the City. Although Johnson belongs to a protected group, she did not show she
was subjected to unwelcome harassment. She only referred to what she perceived
as a lessening of job duties and having to ask other employees for work as grounds
for her hostile work environment claim, but did not show how this constituted
harassment. Even if the change in her job duties constituted unwelcome
harassment, Johnson brought forth no evidence showing it was based on her race.
She mentions, on appeal, racial harassment at the hands of Morrison, but the record
does not reveal what this harassment was or how it related to her race. While she
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may have subjectively perceived the changes in her duties as making her “beneath”
her coworkers, she remained at the same job classification and pay rate, and
received the same benefits. Thus, the terms and conditions of her employment
were in no way altered.1 Because Johnson did not make out a prima facie case of
hostile work environment, the district court did not err in granting summary
judgment for the City on this claim.
Nor did the district court err in granting summary judgment with respect to
Louder’s hostile work environment claim because, even if she subjectively found
the environment hostile, she failed to demonstrate that any unwelcome harassment
was objectively so pervasive as to alter the terms and conditions of her
employment. While Louder alleged Morrison made racial comments to her that
she found offensive, these remarks were not frequent or severe enough to
constitute a hostile work environment. See Mendoza, 195 F.3d at 1246. There is
also no indication these comments were meant to harass Louder because of her
race. Furthermore, Louder presented no evidence that any of the harassment she
perceived interfered with her job performance. Thus, the district court did not err
1
The Supreme Court recently decided that to constitute an adverse employment action in
the retaliation context, an employer’s challenged action must have been “material” to a
reasonable employee. Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006).
For purposes of the present appeal, we find it unnecessary to address whether White applies
outside the retaliation context or changes our precedent with respect to hostile work
environment, as Johnson is not entitled to relief in any event.
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in granting summary judgment in favor of the City on Louder’s hostile work
environment claim.
4. Johnson’s disparate treatment and retaliation claims
For Johnson to establish a claim of disparate treatment stemming from racial
discrimination, she must show: (1) she is a member of a protected class; (2) she
was subject to an adverse employment action; (3) her employer treated similarly-
situated employees who were not members of her class more favorably; and (4) she
was qualified for the job or benefit at issue. Gillis v. Ga. Dep’t of Corr., 400 F.3d
883, 887 (11th Cir. 2005). To establish a prima facie case of retaliation, Johnson
must show: (1) she engaged in statutorily protected expression; (2) she suffered an
adverse employment action; and (3) there was some causal relationship between
the two events. Holifield, 115 F.3d at 1566.
To establish an adverse employment action, “an employee must show a
serious and material change in the terms, conditions, or privileges of employment
. . . as viewed by a reasonable person in the circumstances.” Davis v. Town of Lake
Park, 245 F.3d 1232, 1239 (11th Cir. 2001). Although proof of direct economic
consequences is not required in all cases, “the asserted impact cannot be
speculative and must at least have a tangible adverse effect on the plaintiff’s
employment.” Id. For example, where an employer’s allegedly unfounded
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criticism of an employee’s job performance, in the form of job performance
memoranda or otherwise, does not constitute a formal reprimand or trigger any
tangible form of adverse action such as loss in benefits, ineligibility for
promotional opportunities or more formal discipline, such criticism is rarely
actionable under Title VII. Id. at 1242.
Here, the district court did not err in finding Johnson failed to show she
suffered an adverse employment action. Johnson, by her own admission, retained
the same job title, pay rate, hours, and benefits upon her return from maternity
leave. The only change she faced was that she was no longer directly responsible
for the upkeep of purchase orders, but was instead backing up other account clerks,
including the treasurer. While Johnson contends this change “drastically”
diminished her tasks, Faulkner testified that Account Clerk IIs were cross-trained
to perform each other’s duties and Johnson’s position required that she back up
other account clerks from time to time. On return from maternity leave, Johnson
did what she was originally hired to do—back up the treasurer—but still performed
some of her former duties when she helped other employees with purchase orders.
Thus, any change in responsibilities upon return from maternity leave did not
materially alter her terms and conditions of employment.
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Johnson also did not show she suffered an adverse employment action based
on the counseling memos in her file regarding time and attendance. Although an
adverse employment action does not require a decrease in pay, Johnson did not
proffer any evidence that the counseling memos constituted a formal reprimand or
triggered any tangible form of adverse action such as loss in benefits, ineligibility
for promotional opportunities, or more formal discipline. In fact, she received a
merit raise despite issues with timeliness and absenteeism. Accordingly, because
Johnson failed to show she suffered an adverse employment action to sustain her
disparate treatment and retaliation claims, the district court did not err in granting
summary judgment for the City on these claims.
5. Johnson’s constructive discharge claim
A party cannot amend her complaint to add a new claim through argument in
a brief opposing summary judgment. Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1314-15 (11th Cir. 2004). Moreover, when a case presents one
particular claim and is adjudicated on the basis of that claim, consideration of
another claim on appeal may be inappropriate. See Raytheon Co. v. Hernandez,
124 S. Ct. 513, 519 (2003) (ruling that disparate impact analysis was inappropriate
where only claim properly raised before district court was based on disparate
treatment theory).
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Johnson did not explicitly raise a constructive discharge claim in her second
amended complaint, or even allege she resigned from her job or was no longer
employed with the City. She first mentioned constructive discharge in her
response to the City’s motion for summary judgment, and she cannot amend her
complaint to add a new claim through argument in a brief opposing summary
judgment. See Gilmour, 382 F.3d at 1314-15. Furthermore, the magistrate did not
mention or rule on the constructive discharge claim, but rather decided Johnson’s
claims on the basis of hostile work environment, disparate treatment, and
retaliation theories. Thus, her claim was not properly before the district court and
we need not consider it now. See Raytheon, 124 S. Ct. at 519.
6. Louder’s discriminatory discharge and retaliation claims
Louder did not present direct evidence of racial discrimination, but rather
relied on circumstantial evidence, which invoked the burden-shifting framework of
McDonnell Douglas and Texas Department of Community Affairs v. Burdine, 101
S. Ct. 1089 (1981). Under this framework, the plaintiff must first show an
inference of discriminatory intent by establishing a prima facie case of
discrimination. McDonnell Douglas, 93 S. Ct. at 1824. Once the plaintiff
establishes a prima facie case, the burden shifts to the defendant to “articulate some
legitimate, nondiscriminatory reason” for the employment action. Id. If the
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defendant meets its burden, the plaintiff must then show the proffered reason is
merely a pretext for discrimination. Burdine, 101 S. Ct. at 1093.
Even assuming Louder established a prima facie case of discriminatory
discharge, the City articulated legitimate, non-discriminatory reasons for her
termination. The record shows Louder disrupted the workplace on March 10, 2003
when she called Faulkner “Satan in disguise” loudly and in front of several other
employees. Louder further admitted to making this comment to Faulkner. She did
not, however, rebut the City’s proffered reason for her termination, or point to an
employee who engaged in similar behavior but was treated more favorably than
her. Accordingly, Louder failed to show the reason for her termination was
pretextual.
Since Louder relied on the same evidence to support her retaliation claim,
the magistrate correctly found her retaliation claim could not survive summary
judgment based on the same reasons. This is because even if she established a
prima facie case of retaliation, the City provided legitimate reasons for terminating
her based on her insubordination. She also did not demonstrate this reason was
pretextual. Thus, we affirm the district court’s grant of summary judgment in
favor of the City on Louder’s claims of discriminatory discharge and retaliation.
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7. Collective pattern and practice claim
Pattern and practice claims under Title VII require proof of discriminatory
intent, which requires more than just mere occurrences of isolated or accidental
discriminatory acts. EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1273, 1286-
87 (11th Cir. 2000). “[I]n a pattern and practice case, the plaintiff[s] must prove,
normally through a combination of statistics and anecdotes, that discrimination is
the company’s standard operating procedure.” Id. at 1274 (quotation omitted).
Appellants did not meet their burden of showing discrimination was the
City’s standard operating procedure. Appellants presented neither statistical
evidence nor facts to support their pattern and practice claim, but rather
conclusorily argued the isolated incidents that each of them experienced
demonstrated a standard operating procedure of discrimination. Furthermore, as
noted above, none of the incidents Appellants alleged rise to the level of a Title VII
or § 1981 violation. Thus, the district court did not err in granting summary
judgment in favor of the City on the pattern and practice claim.
B. Louder’s state law assault claim
We review the exercise of supplemental jurisdiction for abuse of discretion.
Lucero v. Trosch, 121 F.3d 591, 598 (11th Cir. 1997). “[I]n any civil action of
which the district courts have original jurisdiction, [they also] have supplemental
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jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However,
“[t]he district courts may decline to exercise supplemental jurisdiction over a claim
[if] . . . (3) the district court has dismissed all claims over which it has original
jurisdiction.” Id. § 1367(c)(3). When a court declines to exercise supplemental
jurisdiction under § 1367(c)(3) because only state claims remain, the proper action
is a dismissal without prejudice so that the complaining party may pursue the claim
in state court. Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999).
As an initial matter, we cannot, as Louder requests, exercise supplemental
jurisdiction over her state law assault claim in the first instance because district
courts have the power to exercise supplemental jurisdiction, not appellate courts.
To the extent Louder argues the district court abused its discretion in failing to
exercise supplemental jurisdiction, her claim lacks merit because all her federal
claims were due to be dismissed. See § 1367(c). Although she argues she can no
longer bring her claim in state court because the applicable statute of limitations
has run, this argument is meritless. The district court clearly apprised her of her
opportunity to refile in state court and the statute of limitations’ tolling period, and
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appropriately dismissed her assault claim without prejudice. Thus, the district
court did not abuse its discretion in dismissing Louder’s state law claim.
III. CONCLUSION
In conclusion, we affirm the district court’s decision because Appellants did
not establish any violation under Title VII or § 1981. They further did not
establish the City engaged in a pattern and practice of racial discrimination.
Because all federal claims were due to be dismissed, the district court did not err in
refusing to exercise supplemental jurisdiction over the remaining state law claim.
AFFIRMED.
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