[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 30, 2007
No. 06-15287 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00201-CV-TWT-1
LINDA CLARK,
Plaintiff-Appellant,
versus
JOHN E. POTTER,
Postmaster General,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 30, 2007)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
The district court granted John E. Potter, the U.S. Postmaster General
(“Postmaster”), summary judgment on the claims of racial discrimination and
retaliation Linda Clark, an African-American, brought against him under Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a), 3(a),
16(a),(c). Clark now appeals, contending that issues of material facts remain to be
litigated and precluded summary judgment. She says that the evidence before the
court demonstrated that white employees received progressive discipline, and
therefore, were treated more favorably. Accordingly, Clark argues that she
established a prima facie case of racial discrimination. Regarding her claim of
retaliation, Clark asserts that the court’s decision was based on evidence that was
inconsistent and outside the record. Specifically, Clark says that the Postmaster
retaliated against her after she filed each of her complaints with the Equal
Employment Opportunity Commission by denying her requests for leave under the
Family and Medical Leave Act (“FMLA”) and by issuing a letter of warning, dated
March 31, 2003, and a notice of suspension for attendance violations.
Race Discrimination
For Postal Service employees, Title VII requires that “[a]ll personnel actions
affecting employees . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Where an
employee supports her Title VII claim with circumstantial evidence, we analyze
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her claim using the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004). Under the McDonnell Douglas framework,
the employee must first establish a prima facie case of discrimination. Id. To
establish a prima facie case of disparate treatment, the employee must show that
she “was a qualified member of a protected class and was subjected to an adverse
employment action in contrast with similarly situated employees outside the
protected class.” Id.
Title VII prohibits discrimination with respect to an employee’s
compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-
2(a). To establish an adverse employment action under Title VII, “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, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in
original). 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 [employee’s] employment.” Id. If an action has no effect on
an employee, it is not an adverse employment action. Stavropoulos v. Firestone,
361 F.3d 610, 617 (11th Cir. 2004) (retaliation claim).
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“In determining whether employees are similarly situated for purposes of
establishing a prima facie case, it is necessary to consider whether the employees
are involved in or accused of the same or similar conduct and are disciplined in
different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “The
most important factors in the disciplinary context . . . are the nature of the offenses
committed and the nature of the punishments imposed.” Silvera v. Orange County
Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (citation and quotation marks
omitted). “In order to satisfy the similar offenses prong, the comparator’s
misconduct must be nearly identical to the plaintiff’s in order to prevent courts
from second guessing employers’ reasonable decisions and confusing apples with
oranges.” Id. at 1259 (citation and quotation marks omitted). Summary judgment
is appropriate if the plaintiff fails to show the existence of a similarly situated
employee, and no other evidence of discrimination is present. Holifield, 115 F.3d
at 1562.
In her brief, Clark relies on the Postmaster’s March 31, 2003 letter of
warning for disrespecting a supervisor, specifically, by using profanity, to establish
an adverse employment action. The letter had no effect on Clark’s employment.
Clark admitted that she did not lose pay or suffer a loss of grade or employment
benefits as a result of such disciplinary action. Clark does not allege that the letter
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had any other tangible job effects, nor is there any such evidence. Accordingly, we
hold that the Postmaster’s issuance of the March 31 letter of warning to Clark for
disrespecting a supervisor was not an adverse employment action.
To the extent that the March 31 letter did not constitute an adverse
employment action, we need not consider whether Clark presented evidence as to
whether similarly situated employees outside her class were treated more favorably
with respect to that action. Nevertheless, the record indicates that Clark failed to
present evidence to satisfy this element. Clark points to two similarly situated
white employees who, unlike her, were not disciplined for disrespecting a
supervisor or using profanity. The record indicates that the white employees
received official discussions, followed by letters of warning, for their attendance
infractions. Moreover, the one employee accused of similar conduct that Clark did
identify was a member of the same protected class, African-American. In sum,
Clark has not established a prima facie case regarding her race discrimination
claim and we affirm the court’s ruling.
Retaliation
“Once a plaintiff has established a prima facie case [of retaliation], the
employer then has an opportunity to articulate a legitimate, non-retaliatory reason
for the challenged employment action.” Pennington v. City of Huntsville, 261
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F.3d 1262, 1266 (11th Cir. 2001). If accomplished, the plaintiff then bears the
ultimate burden of proving by a preponderance of the evidence that the reason
provided by the employer is a pretext for prohibited, retaliatory conduct. Id.
Here, the parties do not dispute that Clark established a prima facie case of
retaliation concerning each of the three asserted adverse actions. Clark has failed,
however, to demonstrate that the Postmaster’s proffered legitimate, non-retaliatory
reasons for each action were pretextual.
As to the denial of Clark’s request for FMLA leave on May 21, 2003, the
record indicates that Lou Speller, Clark’s immediate supervisor, denied Clark’s
request for leave and indicated leave without pay on her leave slip because she
failed to submit the required documentation. Clark failed to provide evidence that
she submitted the required documentation upon her return to work. Nevertheless,
Clark’s request for FMLA was approved after she submitted the required
documentation. As to the denial of Clark’s request for FMLA leave to cover her
absences from August 29, 2003, to September 2, 2003, the record indicates that
Clark failed to provide any evidence that she notified Speller of her request for
FMLA leave or that she submitted an FMLA certification form within the required
time-period. Rather, the record indicates that Clark asserted that she did not have
notice of the FMLA requirements. Lastly, as to the February 4, 2004, notice of
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seven-day suspension, Clark did not dispute the factual basis for her suspension,
which was ultimately reduced to one day, and failed to present evidence that other
similarly-situated employees were treated more favorably with respect to discipline
for attendance violations. The district court therefore did not err in granting the
Postmaster summary judgment on the retaliation claim.
AFFIRMED.
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