[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 1, 2009
No. 08-15230 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-02230-CV-WSD-1
CARL H. FREEMAN,
Plaintiff-Appellant,
versus
CITY OF RIVERDALE,
D.M. EDWARD,
individually and in his official
capacity as Riverdale’s police chief,
PAUL WEATHERS,
individually and in his official
capacity as Riverdale’s police major,
BILLY BECKETT,
individually and in his official
capacity as Riverdale’s city manager,
Defendants-Appellees,
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 1, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Carl H. Freeman appeals the district court’s grant of summary judgment in
favor of his employer, the City of Riverdale (City), on his claims of racial
discrimination, retaliation, and a hostile work environment under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a),
2000e-5(e)(1). On appeal, Freeman argues, inter alia, he presented sufficient
evidence to establish a hostile work environment. Additionally, he argues he
presented sufficient evidence to establish prima facie cases of retaliation and
discrimination against the City. We address his arguments in turn.
I.
First, Freeman contends the evidence he presented was sufficient to establish
a hostile work environment. Specifically, Freeman points to his allegations that
Police Major Greg Barney and his co-workers used racially derogatory language;
his request for leave to attend training was denied; he was falsely accused of
battering an eight-year-old child for which he was terminated in 2001 and, upon
reinstatement, was retaliated against by being forced to perform janitorial tasks; the
City’s mayor told Freeman she thought they had “gotten rid of” him; and he was
falsely accused of violating police policies and terminated again in 2003. He also
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argues the deposition testimony of Barney, who had also filed a grievance with the
City, constituted an admission by the City.
To establish a hostile work environment claim pursuant to Title VII, a
plaintiff has the burden of proving “the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002). To meet this burden, a plaintiff must show: (1) he belongs to a
protected group; (2) he has been subject to unwelcome harassment; (3) the
harassment was based on a protected characteristic, such as race; (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions of
employment and create aa discriminatory abusive working environment; and
(5) the employer is responsible for such environment under a theory of vicarious or
direct liability. Id. The requirement that the harassment be “severe or pervasive”
contains an objective and subjective component. Id. at 1276. “Thus, to be
actionable, this behavior must result in both an environment that a reasonable
person would find hostile or abusive and an environment that the victim
subjectively perceive[s] . . . to be abusive.” Id. (internal quotations omitted).
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In evaluating the objective severity of the harassment, we look at the totality
of circumstances and consider, inter alia: “(1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance.” Id. Title VII is not
a “general civility code.” Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283
(1998). In McCann v. Tillman, 526 F.3d 1370 (11th Cir.), cert. denied, 129 S. Ct.
404 (2008), we held that an African American employee’s allegations that a white
employee called her “girl” and called two African American male employees
“boys,” and another coworker referred to a former African American employee as
a “nigger bitch,” did not amount to severe or pervasive harassment. Id. at 1378-79.
We determined that “[a]lthough offensive, such instances of racially derogatory
language alone, extending over a period of more than two years, [were] too
sporadic and isolated to establish that her employers’ conduct was so objectively
severe or pervasive as to alter the terms and conditions of her employment.” Id. at
1379. In contrast, the frequent and consistent use of offensive language weighs in
favor of a plaintiff’s hostile work environment claim. See Reeves, 525 F.3d at
1146 (use of offensive language nearly every day for three years is severe and
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pervasive); Miller, 277 F.3d at 1276 (ethnic slurs directed at the plaintiff three to
four times daily is severe and pervasive).
Title VII requires employees to file a charge with the EEOC within 180 days
of the alleged unlawful employment activity. 42 U.S.C. § 2000e-5(e)(1). In
determining whether claims are timely, courts must distinguish between allegations
which charge discrete acts of discrimination or retaliation from allegations that
charge repeated acts or events centering on discrimination, intimidation, and
ridicule. McCann, 526 F.3d at 1379. The former grouping constitutes “discrete
acts that must be challenged as separate statutory discrimination and retaliation
claims,” while the latter grouping is viewed as a single, continuous unlawful
employment practice. Id. We have held that hiring decisions, work assignments,
and alleged retaliation claims constitute discrete acts and not acts that are
considered part of a hostile work environment. Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 970 (11th Cir. 2008). Discrete acts are subject to time-bar
if a charge is not filed within 180 days. Id. Finally, Federal Rule of Civil
Procedure 30(b)(6) provides a procedure by which an individual can be designated
to testify on behalf of a governmental agency.
Freeman cannot establish a hostile work environment by reference to his
2001 or 2003 terminations, his assignment to janitorial tasks upon reinstatement, or
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the denial of his requests for training, because they were discrete acts that were
required to be challenged separately. In addition, Freeman did not establish that
Barney was designated to testify on behalf on the City. In total, Freeman alleged
approximately 11 incidents involving the use of racially derogatory language that
spanned the length of his thirteen-year career, with five of those incidents
involving comments made directly toward him or otherwise in his presence. These
statements were too sporadic and isolated to establish discrimination so objectively
severe and pervasive as to alter the terms and conditions of Freeman’s
employment. Therefore, Freeman’s allegations were insufficient to support a
hostile work environment claim.
II.
Freeman next argues he produced sufficient evidence to establish prima
facie cases of retaliation and discrimination against the City regarding a denial of
leave for training in 2003 and his termination later that year. In addition, he argues
he produced sufficient evidence to show that the City’s proffered reasons for
denying him training and for his termination were pretextual because white officers
were allowed to attend training courses and violated police policies without being
disciplined or terminated. The City stated that Freeman was denied leave for
training because of a staff shortage and was terminated for lying during an
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investigation into a charge of disorderly conduct that was brought against him, to
which he eventually pled nolo contendere.
When a plaintiff uses circumstantial evidence in an attempt to prove
discrimination or retaliation under Title VII, we apply the burden shifting approach
articulated in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973).
Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). Here, Freeman
agrees the McDonnell Douglas test is appropriate for his claims. Under the
McDonnell Douglas framework, a plaintiff has the initial burden to establish a
prima facie case of discrimination, which creates a presumption that the employer
discriminated against the plaintiff. Brooks v. County Comm’n of Jefferson County,
446 F.3d 1160, 1162 (11th Cir. 2006).
If the plaintiff establishes a prima facie case, the burden of production shifts
to the employer to provide a legitimate, non-discriminatory reason for the action
taken, which rebuts the presumption of discrimination. Id. If such a reason is
presented, the plaintiff must establish that the employer’s reason is a pretext for
unlawful discrimination. Id. Despite the shifting of burdens of production, the
ultimate burden to prove intentional discrimination remains with the plaintiff. Id.
In order to demonstrate pretext, a plaintiff must show the employer’s offered
reason was not the true reason for its decision, “either directly by persuading the
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court that a discriminatory reason more likely motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of credence.”
Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
2005) (quotation omitted). “Provided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and
rebut it, and the employee cannot succeed by simply quarreling with the wisdom of
that reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en
banc) (ADEA case); see also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1267 n.6
(11th Cir. 2001) (noting that the McDonnell Douglas framework applies to both
Title VII and ADEA cases).
Title VII prohibits retaliation against an employee “because he has opposed
any practice made an unlawful employment practice by this subchapter, or because
he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-
3(a). Title VII also makes it unlawful for an employer “to discharge any
individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-
2(a)(1). To establish a prima facie case of retaliation under Title VII, a plaintiff
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must show that: (1) he engaged in a protected activity; (2) he suffered an adverse
employment action; and (3) a causal connection between the protected activity and
the adverse employment action. Crawford, 529 F.3d at 970. To establish a prima
facie case of discrimination under Title VII, a plaintiff must show that (1) he is a
member of a protected class; (2) he was qualified for his job; (3) he was subjected
to an adverse employment action; and (4) his employer treated similarly situated
employees outside his class more favorably. Maynard v. Bd. of Regents of Div. of
Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).
Even assuming that Freeman had made prima facie cases of retaliation and
discrimination, the district court did not err in granting summary judgment to the
City on these claims because Freeman failed to show the City’s legitimate reasons
for denying him leave to attend training courses and for terminating him were
pretextual. Although Freeman generally alleged that white officers were allowed
to attend other training sessions, he did not show that other officers were allowed
to attend training sessions at the time when Freeman’s request was denied. In
addition, Freeman did not show that other officers were not disciplined for lying
during investigations into their criminal conduct, which was given as the primary
reason for Freeman’s termination. As a result, Freeman’s allegations were
insufficient to support his Title VII retaliation and discrimination claims.
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Accordingly, the district court did not err in granting summary judgment, and we
affirm.
AFFIRMED.
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