[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14808 ELEVENTH CIRCUIT
FEBRUARY 16, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 9:08-cv-80970-KAM
CHE NASH,
Plaintiff-Appellant,
versus
PALM BEACH COUNTY SCHOOL DISTRICT,
PETER LICATA,
in his individual capacity,
Defendant-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 16, 2012)
Before EDMONDSON, HULL and FAY, Circuit Judges.
PER CURIAM:
Che Nash, through counsel, appeals the grant of summary judgment in favor
of his former employer, the Palm Beach County School Board (“Board”),1 and the
principal of his former school, Peter Licata, on Nash’s First Amendment, hostile
work environment, disparate treatment, and retaliation claims.2 Nash brought his
claims pursuant to 42 U.S.C. §§ 1981 and 1983 and the Florida Civil Rights Act
(“FCRA”).3 No reversible error has been shown; we affirm.
Nash, who is of African-American and Caucasian descent, filed a complaint
against the Board and Licata, alleging that, while Nash was employed as a teacher
with the Board, defendants violated his First Amendment rights, created a hostile
work environment, discriminated against him because of his race and gender, and
retaliated against him after he filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”). Before addressing the merits of
Nash’s claims, we must first determine the scope of this appeal.
1
Although Nash named the Palm Beach County School District as a defendant in his
initial complaint, he later amended his complaint to name the Board as the proper defendant.
2
We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light
most favorable to the non-moving party. Id.
3
Employment claims brought under sections 1981 and 1983 and the FCRA involve the
same analysis as Title VII disparate treatment claims. See Rice-Lamar v. City of Ft. Lauderdale,
Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000) (42 U.S.C. §§ 1981 and 1983); Harper v.
Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (FCRA).
2
We conclude that Nash abandoned his First Amendment, hostile work
environment, and gender discrimination arguments because he fails to argue that
the district court erred in denying his claims. See N. Am. Med. Corp. v. Axiom
Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008) (stating that “issues not
raised on appeal are abandoned”); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n.6 (11th Cir. 1989) (stating that passing references to issues in an
appellate brief are insufficient to raise a claim on appeal). To the extent that Nash
attempts to raise a First Amendment freedom of association claim, he did not
present such a claim below; and we will not review it. See Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (explaining that we will
not consider arguments on appeal that were not fairly presented below). Nash also
expressly abandons his argument that the defendants “excessed”4 him in retaliation
for his filing an EEOC complaint. And -- because Nash failed to raise properly the
argument in district court -- we cannot review his argument that defendants
retaliated against him by giving him a negative evaluation. See Access Now, Inc.,
385 F.3d at 1331.
Thus, the only issue truly appealed is Nash’s disparate treatment claim
based on race. Nash alleged that the defendants discriminated against him because
4
This “verb” is explained later in our opinion.
3
of his race when they “excessed” him from his position as a high school physical
education (“P.E.”) teacher, which he alleges was equivalent to firing him. The
district court concluded that Nash failed to make a prima facie case of disparate
treatment because he failed to establish that he suffered an adverse employment
action.5
An adverse employment action is one that involves “a serious and material
change in the terms, conditions, or privileges of employment.” Davis v. Town of
Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in original). “[T]he
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.” Id. A transfer can be an
adverse employment action “if it involves a reduction in pay, prestige or
responsibility.” Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 829 (11th Cir.
2000). In the vast majority of cases, however, a temporary change in work
assignment that creates no tangible harm and does not alter the employee’s
permanent job title, is not legally adverse. Davis, 245 F.3d at 1245.
5
Because this case is a circumstantial evidence case, the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), applies.
4
As an initial matter, nothing evidences that Nash was terminated or that
being “excessed” was tantamount to being fired. That Nash was employed by the
Board -- not a particular school -- and that his employment with the Board ended
only when Nash resigned is undisputed. It is also undisputed that the term
“excessed” refers to a process whereby teachers -- identified based on subject area
and seniority -- may be transferred to another school based on fluctuations in
student population. Nash concedes that he was the least senior P.E. teacher at the
pertinent high school and that, after he was “excessed,” he was reassigned to teach
middle school science.
Nash contends that his transfer constituted an adverse employment action
because it meant that he would no longer be “doing what [he] loved,” which was
teach P.E. and coach athletics. This argument is contradicted by the record, which
establishes that even after his transfer, Nash would retain his position coaching
high school basketball. Moreover, Nash’s subjective viewpoint is not controlling.
See Davis, 245 F.3d at 1239.
Viewing the evidence in the light most favorable to Nash, he failed to show
that a reasonable person would consider his transfer materially adverse. Nash
concedes that he would retain the same salary, benefits, job responsibilities, and
work days after the transfer. He was also certified to teach middle school science.
5
In fact, Nash first started his employment with the Board as a middle school
science teacher and, thus, was merely being reassigned to his original school and
subject area. Because Nash failed to demonstrate that his transfer resulted in any
tangible harm, he failed to establish a prima facie case of employment
discrimination.6
AFFIRMED.
6
Nash fails to demonstrate that Licata’s conduct violated his constitutional rights and,
thus, we need not address whether Licata was entitled to qualified immunity.
6