[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10863 SEPTEMBER 11, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-02221-CV-CCH-1
SHERECA ANDERSON,
SANDY NEVETT,
STEPHANIE RICHARDSON,
Plaintiffs-Appellants,
versus
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 11, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellants Shereca Anderson, Sandy Nevett, and Stephanie Richardson
appeal from a magistrate judge’s entry of summary judgment in favor of their
employer, United Parcel Service, Inc. (“UPS”), in their action alleging race
discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e-2(a), 3(a), and 42 U.S.C. § 1981.1 On appeal,
Appellants argue the magistrate judge erred by finding that they failed to establish
a prima facie case of discrimination because low Quality Performance Review
(“QPR”) scores did not qualify as adverse employment actions.2 They also claim,
for the first time on appeal, that by granting summary judgment, the magistrate
judge violated their right to a jury trial, which they assert is guaranteed by the
Seventh Amendment to the U.S. Constitution and by Title VII. We affirm.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Skrtich
v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is
appropriate if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show there is no genuine
1
The parties consented to the exercise of jurisdiction by a magistrate judge pursuant to 28
U.S.C. 636(c).
2
In addition, Appellants suggest, without further elaboration, that the magistrate judge
misapplied the framework for their Title VII claims, as stated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), and “applied a standard other than that specifically and so
meticulously laid out in [that case].” They also cite, without any accompanying legal argument
or factual comparison to the instant case, our unpublished decision in Horne v Turner Constr.
Co., 136 Fed. Appx. 289 (11th Cir. June 21, 2005), for the proposition that an admission by a
party opponent is admissible as an exception to the hearsay rule. Appellants have not
sufficiently briefed these issues, and thus they are deemed abandoned. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
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issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th
Cir. 1990). 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.” Brooks v. County Comm’n of Jefferson County,
Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).
Title VII makes it unlawful for an employer to discharge any individual, or
otherwise to discriminate against any individual with respect to her compensation,
terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). Because
Appellants rely on circumstantial evidence to establish their claims, we test the
sufficiency of those claims by applying the burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See Chapman v. AI Transp., 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Under the McDonnell Douglas framework, a plaintiff first must show an
inference of discriminatory intent, and thus carries the initial burden of establishing
a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. In
a disparate-treatment case like this one, to satisfy her prima facie burden, a plaintiff
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must show: (1) she was a member of a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) she was treated
less favorably than a similarly-situated individual outside her protected class. See
Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ. of
S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003); Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997) (per curiam).3
The plaintiff’s successful assertion of a prima facie case “creates a rebuttable
presumption that the employer unlawfully discriminated against her.” E.E.O.C. v.
Joe’s Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). If the plaintiff
successfully demonstrates a prima facie case, the burden then shifts to the
employer to produce evidence that its action was taken for a legitimate,
non-discriminatory reason. See Joe’s Stone Crab, 296 F.3d at 1272. “Should the
employer meet its burden of production, the presumption of discrimination is
rebutted, and the inquiry ‘proceeds to a new level of specificity,’ in which the
plaintiff must show that the proffered reason really is a pretext for unlawful
3
Section 1981 guarantees all individuals “equal benefit of all laws” regardless of race,
and specifically, it protects individuals against employment discrimination based on race. 42
U.S.C. § 1981(a); see also Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459 (1975).
When a litigant asserts claims under both Title VII and §1981, the statutes “have the same
requirements of proof and use the same analytical framework.” Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
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discrimination.” Id. at 1272-73 (quoting Burdine, 450 U.S. at 255-56). “Although
the intermediate burdens of production shift back and forth, the ultimate burden of
persuading the trier of fact that the employer intentionally discriminated against the
employee remains at all times with the plaintiff.” Id. at 1273.
The district court found that Appellants did not satisfy their initial burden to
establish a prima facie case of discrimination. Again, to do so, a plaintiff must
show: (1) she was a member of a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) she was treated
less favorably than a similarly-situated individual outside her protected class. See
Maynard, 342 F.3d at 1289. The instant appeal concerns only the third element of
the prima facie case.
We have held that “to prove adverse employment action in a case under Title
VII’s anti-discrimination clause, an employee must show a serious and material
change in the terms, conditions, or privileges of employment. Moreover, the
employee’s subjective view of the significance and adversity of the employer’s
action is not controlling; the employment action must be materially adverse 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 added). In Davis, the
appellant asserted that two negative job performance memoranda placed in his file
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and two changes in his work assignments qualified as adverse employment actions
in connection with a discrimination claim. Id. We rejected that argument because
Davis did not suffer any connected tangible injury, such as a loss in benefits,
ineligibility for promotional opportunities, or more formal discipline. Id. at 1241;
see also Brown v. Snow, 440 F.3d 1259, 1265-66 (11th Cir. 2006) (holding that
“[a] lower score on [an employee’s] performance evaluation, by itself, is not
actionable under Title VII unless [the employee] can establish that the lower score
led to a more tangible form of adverse action, such as ineligibility for promotional
opportunities”; concluding plaintiff failed to assert adverse employment action,
where he failed to establish a connection between the lower score and his lack of
promotion); Gillis v. Georgia Dept. of Corrections, 400 F.3d 883, 888 (11th Cir.
2005) (holding that “an evaluation that directly disentitles an employee to a raise of
any significance is an adverse employment action under Title VII” (emphasis
added)).
Here, the magistrate judge found that although the Appellants’ QPR scores
were low, there was no evidence that the poor performance evaluations by
themselves qualified as adverse employment actions, or that the evaluations were,
in any direct way, connected to a denial of lateral transfers, promotions or pay
raises. Although Appellants presented evidence that QPR scores were considered
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in determining an employee’s eligibility for lateral transfers, promotions, and pay
raises, Appellants conceded that the scores were only “a contributing factor” in a
multi-step process for such benefits.4 On this record, the magistrate judge’s
finding that the QPR scores, “at most, bore some influence on the various
decisionsmakers,” but did not directly result in the challenged employment
decisions, was supported by the evidence. Accordingly, the magistrate judge did
not err by concluding that Appellants failed to demonstrate an adverse employment
action, for purposes of establishing their prima facie case.
We likewise are unpersuaded by Appellants’ claims that the magistrate
judge’s decision improperly denied them their right to a jury trial, in violation of
the Seventh Amendment, an issue we review de novo. See Pleasant-El v. Oil
Recovery Co., 148 F.3d 1300, 1301 (11th Cir. 1998) (reviewing question of
constitutional law de novo). “In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved
. . .” U.S. Const. amend. VII. The Civil Rights Act of 1991 amended Title VII, in
relevant part, by creating a right to trial by jury. See 42 U.S.C. §§ 1981a(a)(1) &
4
For example, eligibility for a lateral transfer or promotion was based on two separate
and unrelated processes -- the “opt-in” process and the process of entering the eligibility pool --
each of which involved multiple steps, while compensation decisions were based on, at least,
nine factors, including job performance.
7
(c); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to
2000e-17; Goodgame v. American Cast Iron Pipe Co., 75 F.3d 1516, 1518 (11th
Cir. 1996).
When “material facts concerning a claim cannot reasonably be disputed” a
district court may grant summary judgment. See Garvie v. City of Ft. Walton
Beach, Fla., 366 F.3d 1186, 1190 (11th Cir. 2004) (citing Fed. R. Civ. P. 56(c)).
“Even though [Rule 56(c)] technically prevents the parties from having a jury rule
upon those facts, there is no need to go forward with a jury trial when the pertinent
facts are obvious and indisputable from the record; the only remaining truly
debatable matters are legal questions that a court is competent to address.” Id.
Because we have concluded the magistrate judge correctly awarded UPS summary
judgment on the Appellants’ claims, because there were no issues of material fact
on the “adverse employment action” element of their prima facie case, we discern
no Seventh Amendment violation. We also find no violation of Title VII’s jury
trial provision.
AFFIRMED.
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