[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 13, 2007
No. 05-15994 THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos. 02-02692-CV-PWG-S & 03-00708-CV-PWG
SAMUEL MOORE, JR.,
Plaintiff-Appellant
versus
ITT TECHNICAL INSTITUTE,
Defendant-Appellee
__________________________________________________
STEPHEN HOBBS,
BARRY JEFFERSON,
WEENA JONES,
KIMBERLY MCTYER,
CARRIE MOORE,
CHELAVONNE SINGLETON,
Plaintiffs-Appellants,
versus
ITT TECHNICAL INSTITUTE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 13, 2007)
Before CARNES, PRYOR and FARRIS,* Circuit Judges.
PER CURIAM:
Before us are seven plaintiffs each appealing the district court’s decision to
grant summary judgment for ITT Technical Institute on plaintiffs’ many claims of
employment discrimination and retaliation under 42 U.S.C. § 1981 and Title VII,
42 U.S.C. § 2000e et seq. In resolving these claims, the district court issued 125
reasoned pages, and we have little to add.
With regard to plaintiffs Weena Jones, Carrie Moore and Stephen Hobbs, we
affirm for the reasons stated by the district court. With regard to Samuel Moore,
we agree with the district court’s reasons for dismissing his hostile work
environment and constructive discharge claims. We also agree that Moore has
failed to state a prima facie case of race discrimination based on failure to promote.
We therefore do not reach the district court’s alternative finding that Moore has
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
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failed to carry his burden of showing pretext.
With regard to plaintiffs Barry Jefferson, Chelavonne Singleton, and
Kimberly McTyer, we agree with the district court’s reasons for rejecting their
failure to promote, hostile work environment, and disparate treatment claims. As
to their retaliation claims, we note that the Supreme Court recently held that
application of Title VII’s retaliation provision is not limited to employer’s actions
that affect the terms, conditions or status of employment, or even to those that
occur at the workplace. Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___,
126 S. Ct. 2405, 2411–14 (2006). That holding calls into question the accuracy of
the district court’s statement of the requirements to establish a prima facie case for
retaliation, as well as the continued validity of statements in several of this circuit’s
opinions. See, e.g. Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d
1095, 1117 (11th Cir. 2001); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th
Cir. 2000). Nonetheless, there is insufficient evidence in the record to justify
sending any of the retaliation claims to trial.
ITT articulated a legitimate non-discriminatory reason for shifting Jefferson
to an inside representative position. The company had only three slots for outside
representatives but it had four outside representatives and Jefferson was the least
senior of the four. If there were evidence in the record that ITT had known for
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months that it was overstaffed with outside representatives but had waited until the
day after Jefferson’s complaint of racial discrimination to redress the problem, an
inference of pretext might be appropriate. But plaintiffs’ counsel was unable to
point to any such evidence in the record at oral argument, and our own review of
the record has not revealed any either.
Singleton has presented a prima facie case of retaliation but identifies no
evidence in the record that ITT’s stated reason for her termination—her violation
of work rules by sending an e-mail complaining of workplace conditions from a
co-worker’s computer—was pretextual. She argues that “it is the subject of the
email which creates a question of fact as to whether or not retaliation motivated
this action.” That argument merely restates her prima facie case and is not by itself
enough to create a genuine issue of material fact as to pretext.
Likewise, McTyer presents no evidence that ITT’s proffered reason for her
termination—violating the company’s attendance policy—was pretextual.
Although she contends that she had permission to miss the event in question, she
concedes that her immediate supervisor, who was not the decision maker about her
termination, told the ITT officials who were the decision makers that she did not
have his permission. “An employer who fires an employee under the mistaken but
honest impression that the employee violated a work rule is not liable for
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discriminatory conduct.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1363 n.3 (11th Cir. 1999).
At oral argument, McTyer’s counsel directed us to a statement by Jerome
Ruffin in which Ruffin expressed his feeling that an ITT supervisor had used him
to retaliate against Stephen Hobbs and Barry Jefferson. However, Ruffin did not
mention McTyer in this statement and Ruffin did not contend there was any
specific evidentiary basis for his belief. Instead, he clarified: “That’s just how I
felt.”
AFFIRMED.
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