[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2008
No. 07-12720 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-02270-CV-T-26-TGW
JOHNNY JONES,
KIMBERLY SINGLETON,
Plaintiffs-Appellants,
versus
CITY OF LAKELAND,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 6, 2008)
Before EDMONDSON, Chief Judge, KRAVITCH and ALARCON,* Circuit
Judges.
PER CURIAM:
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit,* sitting
by designation.
Johnny Jones and Kimberly Singleton, both black employees, appeal the
district court’s grant of summary judgment in favor of their employer, the City of
Lakeland (“the City”), in their discrimination actions, brought pursuant to Title
VII, 42 U.S.C. § 2000e, the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10,
and 42 U.S.C. §§ 1981 and 1983. Upon review of the record and after hearing oral
argument, we affirm.
I. Background
Viewing the evidence in the light most favorable to Jones and Singleton as
the non-moving parties, the record established the following facts.
a. Jones’s allegations
Jones began working for the City in 1985 in the refuse division of public
works. He transferred to the Construction and Maintenance Division (“CM”) in
1994 after many instances of disciplinary actions resulting from tardiness and
absenteeism.2 Shortly after the transfer, Larry Carroll became department manager
in CM; Jones did not get along with Carroll, whom he believed disliked black
people. Jones alleged, and co-workers James Allen and Matt Bernal confirmed,
that the foremen and co-workers used racial slurs such as “spook,” “nigg,” and
2
Jones did not believe any of these difficulties were racially motivated.
2
“monkey” and made derogatory comments at morning meetings.3 Although the
slurs occurred on a daily basis, and Jones had received copies of the City’s anti-
harassment and anti-discrimination policies, Jones never filed a grievance
concerning these slurs under the City’s policy.
Despite the transfer to the CM division, Jones continued to face disciplinary
actions. Under the city’s disciplinary policies, there was an increasing scale of
punishment, beginning with oral and written warnings and ending with
termination, depending on the type of infraction.4 In 1999, Jones received two
warnings for tardiness and was demoted. In disputing his discipline, Jones
specifically mentioned racial discrimination; he did not, however, make any
allegations of a hostile work environment.
Jones was disciplined again in December 2000 following an altercation with
his former supervisor. In February 2001, Jones engaged in another verbal
altercation with a police officer on duty in a state building. He was disciplined for
this conduct in March 2001; Carroll attempted to discharge Jones, but the
termination was reduced to suspension following a hearing. Jones did not
3
Jones could not remember when the comments were made or by whom.
4
Group I offenses, such as tardiness, would received written warnings. Subsequent
Group I violations could receive three-days suspension or termination. Group II offenses
included abusive language to other employees. This conduct would receive suspension,
followed by termination for subsequent offenses. Group III offenses, such as insubordination
and repeated failure to adhere to policies and procedures, called for immediate termination.
3
experience any disciplinary actions during the next few years.
Jones repeatedly sought promotions to open positions, some of which he
received.5 In April 2003, Jones was promoted to Construction Tradesworker II. In
July 2003, Jones received a written reprimand for insubordination. Although his
supervisor again recommended termination, this discipline was reduced to a
written reprimand.
On March 17, 2004, Jones filed a charge of discrimination with the EEOC
alleging discrimination and a hostile work environment. Following its
investigation, the EEOC found reasonable cause and issued a notice of right to sue.
In 2005, Jones was moved to the position of street sweeper while another
employee was out on leave. Once the employee returned, Jones remained in the
sweeper position and did not return to his lead position. Although he was offered a
crew position, Jones declined because he viewed this as a demotion. Jones
received the same grade and pay in the sweeper position.
b. Singleton’s Allegations
Singleton began working for the CM division in July 1995 as a Clerk Typist
III. In 1999, she was promoted to Secretary III and Carroll became her supervisor.
Her new duties included working on annual bids, typing, filing, and entering
5
Jones did not assert a discrimination claim with respect to these promotion denials, as
they were time-barred.
4
payroll. In 2001, Dorothy Fowler, who was white, took over the clerk typist
position. Due to a city-wide study, both Singleton and Fowler were reclassified as
Office Associate IIs.
Singleton and Fowler did not get along; Singleton believed that Fowler
constantly reported her activities to Carroll and had Carroll assign Singleton
clerical duties that Fowler did not want to do. Singleton also alleged that Carroll
showed favoritism to Fowler, in part because Fowler was always complimenting
Carroll. Carroll did not show favoritism to the other white female in the
department, Sharon Siegel. In May 2003, Singleton applied for and received a
transfer to another department. In preparation of the transfer, Carroll began to
implement a plan to divide the Office Associate II duties to accommodate new
computer systems. When Singleton later decided not to transfer, Carroll proceeded
with the reassigned duties as planned.
Singleton alleged that the City attempted to create a new position in 2003.
Singleton believed this new position would be a promotion, but she was denied
opportunities to train for the position. In July 2003, the problems with Fowler
came to a head in a staff meeting at which Carroll reassigned many of Fowler’s
duties, including answering the phone and sorting mail, to Singleton. Singleton
complained to Carroll about the changes. She also complained in writing to
5
Employee Relations Director George Brooks that she was experiencing
discrimination as a result of the re-assignment of duties and the denial of training.
She did not allege that she experienced a hostile work environment.
Brooks, who is black, did not believe Singleton’s treatment was
discriminatory. Based on her discussion with Brooks, Singleton amended her
complaint to exclude any mention of discrimination, although she orally informed
Carroll’s boss Rick Lilyquist of the alleged racial discrimination when she met
with him on July 18, 2003 to discuss her concerns. Although Lilyquist did not
believe there was discrimination, as there was no position available, Lilyquist
offered Singleton the training.
Singleton alleged that she faced retaliation after her July 2003 complaint in
the following ways: (1) she again was denied training in August 2003; (2) Carroll
made comments related to the complaint; (3) Carroll treated her more harshly;
(4) her performance evaluations were lower, which Carroll explained were due to
the “confrontation;” (5) she was assigned more of Fowler’s duties, moved from her
office, and ordered to sit at the reception desk; (6) she was omitted from staff
meetings; and (7) Carroll monitored her comings and goings and required her to
keep a daily log.
In her deposition, Singleton alleged that she heard Carroll call employee
6
James Allen “possum.” Carroll stopped using the term when Allen asked him to
stop. Singleton also indicated that other employees had told her of many instances
in which Carroll made racial slurs. Singleton did not mention these comments in
any of her complaints and did not file a grievance even though she was aware of
the City’s anti-harassment and anti-discrimination policies; the first time she raised
an allegation of hostile work environment was when she filed her complaint with
the EEOC on March 18, 2004. When asked why she did not report the alleged
harassment to the Employee Relations Department, Singleton stated that “it was
not her fight.” Following its investigation of the charge, the EEOC concluded that
there was reasonable cause and issued a notice of the right to sue.
After news of the discrimination charge filtered through the office, Singleton
alleged she faced further retaliation and discrimination in the following ways:
(1) several co-workers called Singleton a “trouble-maker;” (2) one co-worker
drafted a letter to the newspaper criticizing the allegations, and Carroll allegedly
forced Singleton to type the letter; (3) in June 2004, Carroll again changed her job
assignments to add more of Fowler’s tasks; (4) Carroll denied Singleton’s request
for a transfer in August 2004; (5) Carroll denied Singleton’s request to work
overtime on a Sunday, instead insisting that she work her overtime on Saturday;
and (6) in 2005, when Singleton requested maternity leave, Carroll made a
7
comment about women giving birth in the field and returning to work the next day.
In December 2005, Singleton transferred to another department.
c. The City’s investigation
Brooks did not learn of the allegations until he received copies of the EEOC
charges in March 2004. As a result of the charge, the City launched an
investigation, interviewed the employees, and took remedial action. The City
instructed all employees that the racial jokes, slurs, and comments would not be
tolerated. Brooks also conducted workshops and held training sessions on
diversity.
d. The District Court Proceedings
Jones and Singleton filed an employment discrimination action claiming
discriminatory discipline, denials of promotions, and hostile work environment
based on these events.
The City moved for summary judgment against both plaintiffs. On May 14,
2007, the plaintiffs filed their opposition. Three days later, the district court
granted summary judgment. Relevant to the issues on appeal, the court found that
Singleton failed to establish a prima facie case of retaliation because there was no
causal connection between the alleged acts and her complaints, but even if
Singleton established a prima facie showing, the City proffered a legitimate
8
nondiscriminatory reasons for its decisions, which Singleton had not shown to be
pretextual. The court further found that Singleton failed to establish a hostile work
environment claim because although she had been told of comments by other
employees, she never complained of the comments, and the alleged comments
were neither threatening or humiliating. Nevertheless, the court concluded that the
City established an affirmative defense to liability under Faragher/Ellerth 6 because
it had an anti-discrimination policy, Singleton failed to use the policy, and the City
took remedial action when it learned of the behavior. With respect to Jones’s
allegations, the court concluded that Jones failed to establish a hostile work
environment because he could not identify who made racial slurs or when, his
vague allegations were insufficient, and the alleged comments were neither
threatening nor humiliating.7 As with Singleton’s claims, the court also found that
the City established its affirmative defense under Faragher/Ellerth. Finally, the
court determined that Jones failed to establish a prima facie case of retaliation
because there was no causal connection between his complaint and the decision to
reassign his duties.
6
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662
(1998); Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998).
7
Although we find the comments objectionable, the district court’s conclusion is not
reversible error because Jones failed to report the slurs prior to filing his EEOC charge.
9
This appeal followed.
II. Discussion
Jones and Singleton initially raised discrimination and pattern or practice
claims. They do not raise those on appeal, and thus have abandoned them. Rowe
v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998). Accordingly, the only
issues before us are the hostile work environment and retaliation claims.
We review summary judgment orders de novo, making all factual inferences
in the light most favorable to the non-moving party. Danskine v. Miami Dade Fire
Dep’t, 253 F.3d 1288, 1293 (11th Cir. 2001).
Title VII prohibits race-based discrimination that alters the terms and
conditions of employment.8 42 U.S.C. § 2000e-2(a)(1). An employee can
establish a violation in either one of two ways: (1) through a tangible employment
action - e.g., a demotion; or (2) “through creation of a hostile work environment
caused by [] harassment that is sufficiently severe or pervasive to alter the terms
and conditions of work.” See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d
1287, 1300 (11th Cir. 2007). However, Title VII is not meant to serve as “a
8
The FCRA prohibits employment discrimination based on, among other things, race.
See Fla. Stat. § 760.10(i)(a). Because the FCRA is patterned after Title VII, courts routinely
apply Title VII case law to discrimination claims brought under the FCRA. Harper v.
Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). Additionally, both Title VII
and § 1981 have the same requirements of proof and present the same analytical framework.
Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).
10
general civility code.” See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 81, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998).
In order to establish a prima facie claim of a hostile work environment, a
plaintiff must establish: (1) that s/he belongs to a protected group; (2) that s/he has
been subject to unwelcome harassment;9 (3) that the harassment [was] based on a
protected characteristic 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) that the employer is
responsible for such environment under either a theory of vicarious or of direct
liability.10 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002)
Under the fourth prong-whether the harassing conduct was sufficiently
severe or pervasive to alter the terms and conditions of employment-the employee
must personally perceive the harassment as severe and pervasive, and the
environment must be one that a reasonable person in the employee’s position
would find hostile or abusive. Hulsey v. Pride Rest., LLC, 367 F.3d 1238, 1247
9
The court may consider racial slurs not directed at the plaintiff or not made in the
plaintiff’s presence as evidence of a hostile environment. See Busby v. City of Orlando, 931
F.2d 764, 785 (11th Cir. 1991).
10
Contrary to the City’s argument, we may consider incidents occurring outside the
statutory time-frame because the very nature of the claim is one of repeated and pervasive
conduct. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-117 (2002).
11
(11th Cir. 2004). The following four factors are important in analyzing whether
harassment objectively altered an employee’s terms or conditions of employment:
“(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct was physically threatening and humiliating or just a mere utterance; and
(4) whether the conduct unreasonably interferes with the employee’s work
performance.” Id. at 1247-48. Additionally, we consider the alleged conduct in
context and cumulatively, looking at the totality of the circumstances, to determine
if an environment is hostile. See id. at 1248. Teasing, offhand comments, and
isolated incidents do not constitute discriminatory changes in the terms and
conditions of employment. Faragher v. City of Boca Raton, 524 U .S. 775, 788,
118 S.Ct. 2275, 2284, 141 L.Ed.2d 662 (1998).
Under the fifth prong, “[a]n employer is subject to vicarious liability to a
victimized employee for an actionable hostile environment created by a supervisor
with immediate ... authority over the employee.” Ellerth, 524 U.S. at 765. If the
harassing supervisor takes a tangible employment action against the victimized
employee, the employer will be vicariously liable to the employee without the
benefit of a legal defense. Id. at 762-63; see also Frederick v. Sprint/United Mgmt.
Co., 246 F.3d 1305, 1311 (11th Cir. 2001). Where the employee does not suffer a
tangible employment action, the employer may avoid liability by showing 1) it
12
“exercised reasonable care to prevent and correct promptly any [] harassing
behavior”; and 2) the employee “unreasonably failed to take advantage of any
preventative or corrective opportunities [it] provided.” Faragher, 524 U.S. at 807;
Ellerth, 524 U.S. at 765. See also Nurse “BE” v. Columbia Palms West Hosp. Ltd.
Partnership, 490 F.3d 1302, 1309 (11th Cir. 2007). As an affirmative defense, the
defendant bears the burden of establishing both of these elements. See id. “[O]nce
a company has developed and promulgated an effective and comprehensive
anti-sexual harassment policy, aggressively and thoroughly disseminated the
information and procedures contained in the policy to its staff, and demonstrated a
commitment to adhering to this policy, it has fulfilled its obligation to make
reasonably diligent efforts to ‘know what is going on’ within the company.”
Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997).
Title VII and the FCRA also include a separate anti-retaliation provision
prohibiting employers from retaliating against an employee “because he has
opposed any practice made an unlawful employment practice” by Title VII. See 42
U.S.C. § 2000e-3(a); Fla. Stat. § 760.10(7). “[A]n employee need not prove the
underlying claim of discrimination for the retaliation claim to succeed.” Sullivan
v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999).
To establish a prima facie case of retaliation, a plaintiff must prove that
13
(1) s/he participated in a protected activity; (2) s/he suffered a materially adverse
employment action; and (3) there was a causal connection between the
participation in the protected activity and the adverse employment decision.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165
L.Ed.2d 345 (2006); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978
n.52 (11th Cir. 2008). The phrase ‘protected activity’ includes formal EEOC
complaints and informal complaints filed internally to the employee’s supervisors.
Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 n.2 (11th Cir. 2002).
This court construes “the causal link element broadly so that ‘a plaintiff
merely has to prove that the protected activity and the ... [adverse] action are not
completely unrelated.’” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)
(modifications in original) (citation omitted). Furthermore, a causal connection is
established if the plaintiff shows that the decision-maker was aware of the
protected activity and the protected activity is not wholly unrelated to the adverse
action. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000). “For
purposes of a prima facie case, ‘close temporal proximity’ may be sufficient to
show that the protected activity and the adverse action were not ‘wholly
unrelated.’” Id.
This court has held that a three month period between the protected activity
14
and adverse action “does not allow a reasonable inference of a causal relation
between the protected expression and the adverse action.” Higdon, 393 F.3d at
1221.
If the plaintiff establishes a prima facie case, the burden shifts to the
employer to proffer a legitimate, non-discriminatory reason for the adverse action.
Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007). If the
employer meets this burden, then the plaintiff must show that the employer’s
proffered reason is mere pretext for retaliation by presenting sufficient evidence
“to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment decision.” Combs
v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Conclusory
allegations, without more, are insufficient to show pretext. Mayfield v. Patterson
Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). Instead, the plaintiff must meet
the proffered reason “head on and rebut it.” Chapman v. AI Transport, 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc).
After a thorough review of the record and upon hearing oral argument, we
conclude that there was no error in the district court’s order granting summary
judgment. With respect to the hostile work environment claims, although Jones
and Singleton were aware of the City’s anti-discrimination and anti-harassment
15
policies prior to their EEOC complaints, neither filed grievances alleging a hostile
environment, and this failure is fatal to those claims. Moreover, once the City
learned of the allegations following the EEOC charge, the City investigated and
took prompt remedial action. Finally, Jones’s and Singleton’s alleged instances of
retaliation are either too far removed from any complaint to establish a causal
connection, or are justified by legitimate, non-retaliatory reasons, which the
plaintiffs failed to show were pretextual. Accordingly, we AFFIRM.
16