[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 28, 2007
No. 06-15627 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00115-CV-RLV-1
CHANDRA F. HENDERSON,
Plaintiff-Appellant,
versus
WAFFLE HOUSE, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 28, 2007)
Before BLACK, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Chandra F. Henderson appeals the entry of summary judgment in favor of
Waffle House, Inc. on her sexual harassment and retaliation claims, brought
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a),
2000e-3(a). On appeal, Henderson argues that the district court erred by failing to
consider the for-cause determination prepared by the Equal Employment
Opportunity Commission (EEOC) or evidence from the EEOC’s file that she
presented in opposition to Waffle House’s motion for summary judgment. She
further challenges the district court’s findings that she failed to establish a prima
facie case of sexual harassment or retaliation. For the reasons set forth more fully
below, we affirm.
We review the district court’s ruling on summary judgment de novo. Rojas
v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party is entitled to
summary judgment “if 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 any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(c). If the non-moving party bears
the ultimate burden of proof regarding the claim at issue, that party, in response to
a properly supported motion, must go beyond the pleadings and establish, through
competent evidence, that there truly is a genuine, material issue to be tried. Celotex
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Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
However, a “mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably
find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
“When deciding whether summary judgment is appropriate, all evidence and
reasonable factual inferences drawn therefrom are reviewed in a light most
favorable to the non-moving party.” Rojas, 285 F.3d at 1341-42 (citation and
quotation marks omitted).
Under Title VII, discrimination “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex” is an “unlawful employment practice.” 42 U.S.C.
§ 2000e-2(a)(1). A claim of sexual harassment based on harassment by a
supervisor requires an employee to show:
(1) that he or she belongs to a protected group; (2) that the employee
has been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual
nature; (3) that the harassment must have been based on the sex of the
employee; (4) that the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) a basis for
holding the employer liable.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc) (citation
and footnote omitted).
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Harassment is severe or pervasive for Title VII purposes only if it is
both subjectively and objectively severe and pervasive. Harassment is
subjectively severe and pervasive if the complaining employee
perceives the harassment as severe and pervasive, and harassment is
objectively severe and pervasive if a reasonable person in the
plaintiff’s position would adjudge the harassment severe and
pervasive. When determining whether harassment is objectively
severe and pervasive, courts consider the frequency of the conduct,
the severity of the conduct, whether the conduct is physically
threatening or humiliating, or a mere offensive utterance, and whether
the conduct unreasonably interferes with the employee’s job
performance.
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir.
2000) (citations and quotation marks omitted). In making this determination, we
look to the totality of the circumstances. Mendoza, 195 F.3d at 1246. However,
“‘simple teasing,’ offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms and conditions of
employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct.
2275, 2283, 141 L.Ed.2d 662 (1998) (citation omitted).
Title VII also prohibits discrimination by an employer “against any of his
employees . . . because he has opposed any practice made an unlawful employment
practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a). Where a plaintiff
supports her Title VII claim with circumstantial evidence, we analyze 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
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F.3d 1079, 1087 (11th Cir. 2004). Under the McDonnell Douglas framework, the
plaintiff has the initial burden of establishing a prima facie case. McDonnell
Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. To establish a prima facie case
of retaliation forbidden by Title VII, the plaintiff must show that: (1) she
participated in an activity protected by Title VII; (2) she suffered an adverse
employment action; and (3) there is a causal connection between the participation
in the protected activity and the adverse employment decision. Gupta v. Fla. Bd.
of Regents, 212 F.3d 571, 587 (11th Cir. 2000).
Title VII protects individuals who have informally voiced complaints to
their superiors. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 n.2
(11th Cir. 2002). A plaintiff must demonstrate that she had a subjective, good-
faith belief that her employer was engaged in unlawful employment practices and
that her belief was objectively reasonable in light of the facts and record presented.
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.
1997). The plaintiff’s subjective belief is measured against the substantive law at
the time of the offense. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267
F.3d 1183, 1187 (11th Cir. 2001). Although the conduct opposed need not
“actually be sexual harassment, . . . it must be close enough to support an
objectively reasonable belief that it is.” Clover v. Total Sys. Servs., Inc., 176 F.3d
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1346, 1351 (11th Cir. 1999). To establish the causal connection required by the
third prong, the plaintiff must show that the decision-makers were aware of the
protected conduct and that the protected activity and the adverse employment
action were not wholly unrelated. Gupta, 212 F.3d at 590.
We have reviewed the EEOC’s for-cause determination. See Kincaid v. Bd.
of Trs., Stillman College, No. 05-15974, manuscript op. at 13-14 (11th Cir. June
27, 2006) (unpublished) (rejecting the plaintiff’s contention that the EEOC
determination raised a genuine issue of material fact); Horne v. Turner Constr. Co.,
No. 04-14775, manuscript op. at 7 (11th Cir. June 21, 2005) (unpublished)
(holding that the district court should have taken into consideration in the summary
judgment proceeding the EEOC’s finding that there was reasonable cause to
believe that discrimination occurred and that the court erred by failing to do so).
We have also reviewed the evidence from the EEOC file, to the extent that it is
pertinent to the issue of whether Henderson established a prima facie case on her
claims and is reducible to an admissible form. See Rowell v. BellSouth Corp., 433
F.3d 794, 800 (11th Cir. 2005) (“On motions for summary judgment, we may
consider only that evidence which can be reduced to an admissible form.”).
However, upon consideration of the parties’ briefs and the record on appeal, we
discern no error in the district court’s conclusions that Henderson failed to
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establish a prima facie case of sexual harassment or retaliation.
Henderson was employed as a waitress at a Waffle House restaurant in
Cordele, Georgia. In support of her sexual harassment claim, Henderson relies
upon the following evidence in support of her argument that she established a
genuine issue of material fact as to the severity and pervasiveness of the
harassment: (1) the EEOC’s for-cause determination, which found that Jesse
Stinson, the manager of the Cordele Waffle House, sexually harassed her; (2) co-
worker Jeremy Aultman’s testimony that sexual harassment was a regular and
rampant problem at the Cordele Waffle House and at every Waffle House in which
he worked; (3) assistant manager Hezekiah Howard’s testimony that he was
accused of sexual harassment, but nothing happened as a result of the accusation;
and (4) evidence that Stinson pulled her hair, called her “Dolly,” made remarks
about the size of her breasts on more than one occasion, and refused to give her an
apron because of his opinion about the size of her breasts.
In her deposition, Henderson stated that Stinson made the following
comments of a sexual nature during the last two months of her employment:
(1) Stinson called her “Dolly”; (2) in a conversation about a new shirt, Stinson told
her,“you just look like you’re going to burst” and started laughing; (3) when she
asked Stinson for an apron, Stinson said that they did not make aprons “big enough
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for people with boobs like mine”; (4) Stinson told her not to stand so close to him
because it made him nervous and told her he would get in trouble if he said why;
and (5) Stinson pulled her hair, and said she had horse hair and that it was greasy.
In her EEOC interview, Henderson stated that Stinson made a comment about her
large breasts in front of a customer. It is unclear whether or not this is a separate
incident from the ones described in her deposition.
Even if being called “Dolly,” Stinson’s comment that he would get in
trouble if he said why Henderson’s presence made him nervous, and having one’s
hair pulled and commented upon in this manner is sexual in nature, these incidents
are insufficient to create a genuine issue of material fact as to whether harassment
was sufficiently severe or pervasive so as to alter the terms and conditions of
employment. See Mendoza, 195 F.3d at 1247-49 (holding that a supervisor’s acts
of rubbing his hip against the plaintiff’s hip while touching her shoulder and
smiling, looking at her groin area while making a sniffing sound, and “constantly”
staring and following her, over an eleven-month period, were insufficient as a
matter of law to sustain a “hostile environment” sexual harassment claim). The
EEOC for-cause determination found that Henderson was “subjected to verbal
sexual harassment” by Stinson and that the evidence supported a violation of Title
VII. The finding that Stinson verbally sexually harassed Henderson is essentially
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duplicative of the incidents of harassment Henderson described. To the extent that
Henderson is arguing that the EEOC determined that the harassment was
sufficiently severe and pervasive, the EEOC did not explicitly make this finding
and provided no analysis that would support such a finding. The EEOC’s for-
cause determination, therefore, is insufficient to create a genuine issue of fact as to
the severity or pervasiveness of the harassment. See Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989) ( “Mere conclusions and unsupported
factual allegations are legally insufficient to create a dispute to defeat summary
judgment.”); see also Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272,
1279 (11th Cir. 2003) (“Not all forms of conduct that may be described as
‘harassment,’ however, affect a ‘term, condition, or privilege’ of employment
within the meaning of Title VII.”). With regard to evidence of sexual harassment
occurring at Waffle Houses in general and the Cordele Waffle House in particular,
there is no evidence that any of this harassment involved Henderson. In addition,
Aultman described the harassment he witnessed as consisting of “talk” or jokes by
co-workers, not managers.
On her retaliation claim, Henderson points to evidence that Stinson was
heard using inappropriate language with her and was heard making comments
about her breasts to demonstrate that she had an objectively and subjectively
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reasonable belief that Stinson was engaging in an unlawful employment practice.
She argues that, contrary to the district court’s conclusion that occasional jokes
about her breast size were insufficient, this should have created a genuine issue of
fact. Although the conduct opposed need not “actually be sexual harassment, . . . it
must be close enough to support an objectively reasonable belief that it is.”
Clover, 176 F.3d at 1351. In this case, the conduct Henderson described is
insufficient to support an objectively reasonable belief that Stinson was engaging
in an unlawful employment practice. See Faragher, 524 U.S. at 788, 118 S.Ct. at
2283 (“‘[S]imple teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’”) (citation omitted).
Even if we were to find Henderson’s belief objectively reasonable,
Henderson cannot establish a casual connection between her complaint to Howard
and to her division manager, Melissa Ann Perry, the night before she was fired and
her termination. Henderson argues that Perry was “likely” involved in her
termination, an argument she bases on the fact that Perry had hiring and firing
authority. However, this evidence does not permit a reasonable inference that
Perry was involved in Henderson’s termination. Stinson testified that he made the
decision to terminate Henderson, and did not confer with anyone else, apart from
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Henderson, about the decision. Perry testified that unit managers and district
managers have responsibility for hiring and firing associates within each division
and that unit managers had the authority to terminate a sales person in their
restaurant without consulting anyone. Therefore, even if Henderson’s complaint
sufficiently informed Perry that she was opposing an unlawful employment
practice, Henderson is essentially speculating that Perry had a role in her
termination. See Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1198 (11th
Cir. 1997) (“Summary judgment cannot be avoided, though, based on hunches
unsupported with significant probative evidence.”). In addition, the remainder of
Henderson’s complaints cannot reasonably be viewed as opposition to an unlawful
activity, there is no evidence that Howard relayed any of Henderson’s complaints
to Stinson, and the conversation Susan Aultman had with Stinson, telling him that
what he said was “ugly,” that he hurt Henderson’s feelings, and that it was not
professional, cannot reasonably be viewed as putting him on notice that Henderson
was engaged in protected conduct.
In light of the foregoing, we
AFFIRM.
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