[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10350 ELEVENTH CIRCUIT
AUGUST 25, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-01699-CV-MHS-1
LEROY HILL, JR.,
Plaintiff-Appellant,
versus
EMORY UNIVERSITY,
EMORY HEALTHCARE, INC.,
d.b.a. Emory Winship Cancer Institute,
DEDRA F. CANTRELL,
a.k.a. Dedra Frutchey,
SANDRA MURDOCK,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 25, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Leroy Hill, Jr., appeals the district court’s grant of summary judgment in
favor of his employer, Emory University and Emory Healthcare, Inc. (“EHC”),
which operated the Emory Winship Cancer Institute, (“WCI”), and two of its
employees, EHC Chief Information Officer Dedra F. Cantrell and WCI Chief
Operating Officer Sandra Murdock, on his claims of termination based on race, in
violation of 42 U.S.C. § 1981; termination based on race, retaliation, wage
discrimination; and a hostile work environment, in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a);
and, a state law claim of negligent retention. He also appeals the court’s denial of
his motion to compel discovery and the court’s subsequent award of attorneys’ fees
to the defendants, which we will address first.
I. Award of attorneys’ fees and motion to compel
Hill argues that the district court’s award of attorneys’ fees was
unwarranted because his motion to compel was substantially justified. The dispute
between the parties centered around the breadth of discovery. Hill contends that
his work was university-wide in scope because he worked for WCI, but continued
to report in part to Cantrell at EHC. Furthermore, Hill argues, the defendants later
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produced most of the objected-to information. Hill thus contends that a genuine
dispute between the parties existed and that the motion was substantially justified.
We review the denial of a motion to compel discovery for an abuse of
discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006)
(citation omitted). We also review a district court’s decision regarding sanctions
under Federal Rule of Civil Procedure 37 for an abuse of discretion. Serra
Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1146-47 (11th Cir. 2006)
(citation omitted). A district court abuses its discretion when it misapplies the law
in reaching its decision or bases its decision on findings of fact that are clearly
erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000), cert.
denied, 532 U.S. 926 (2001) (citation omitted).
Under the Federal Rules of Civil Procedure, a party is permitted to “obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim
or defense. . . .” F ED. R. C IV. P. 26(b)(1). The information sought does not need to
be admissible at trial “if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id. District courts can limit discovery when
“the burden or expense of the proposed discovery outweighs its likely benefit. . . .”
F ED. R. C IV. P. 26(b)(2)(c)(iii). Under Rule 37, a party may move to compel
disclosure under Rule 26, and “[a] party seeking discovery may move for an order
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compelling an answer, designation, production, or inspection.” F ED. R. C IV. P.
37(a)(3)(A), (B). When such motion is denied, the court “must . . . require the
movant, the attorney filing the motion, or both to pay the party . . . who opposed
the motion its reasonable expenses incurred in opposing the motion, including
attorney’s fees.” F ED. R. C IV. P. 37(a)(5)(B). However, the court should not order
payment “if the motion was substantially justified or other circumstances make an
award of expenses unjust.” Id. “Substantially justified means that reasonable
people could differ as to the appropriateness of the contested action.” Maddow v.
Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997) (citation omitted).
Hill has not established any abuse of discretion in the denial of his motion to
compel discovery or in the award of attorneys’ fees because he did not challenge
the district court’s conclusion that several of his requests were difficult to interpret
and improperly worded. Therefore, he has not shown that his motion was
substantially justified.
II. Discriminatory termination claim
Hill argues that the district court erred in granting summary judgment on his
§ 1981 and Title VII discriminatory termination claims because he believes that the
court required him to produce direct evidence of discrimination in order to meet his
burden. Although he concedes that he “did not necessarily produce any direct
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evidence” of discrimination, he argues that the coincidental events surrounding his
termination could lead reasonable jurors to conclude that he was terminated and
not considered for retention because of his race. In support, Hill cites: (1) the rapid
rise of Cindy Hubbard, a Caucasian woman; (2) the defendants’ acknowledgment
that his termination was not based on performance; and (3) the defendants’ refusal
to reabsorb him into a different position after he was terminated as they had done
for others. Furthermore, Hill argues that he established that the defendants’
proffered reasons for his termination were pretextual because Hill worked on
several projects beyond the development of the GeneSys SI (“GSI”) program,
which was the main program he was hired to develop, including many projects
initially assigned to Hubbard that were all reassigned to Hubbard when he was
terminated. He also emphasizes his belief that the WCI account consistently had a
budget surplus. Hill relies on the same evidence in arguing that the district court
erred in granting summary judgment to the defendants on his retaliation claim.
We review a district court’s grant of summary judgment de novo, viewing all
evidence in a light most favorable to the non-moving party. Martin v. Brevard
County Pub. Schs., 543 F.3d 1261, 1265 (11th Cir. 2008) (per curiam) (citations
omitted). Summary judgment is appropriate when there is no genuine issue of
material fact, thereby entitling the movant to judgment as a matter of law. F ED. R.
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C IV. P. 56(c). Summary judgment should be awarded “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
Additionally, a mere scintilla of evidence is not enough to survive summary
judgment; a plaintiff must present enough evidence to enable a reasonable jury to
find for her by a preponderance of the evidence. Shotz v. City of Plantation, 344
F.3d 1161, 1184 (11th Cir. 2003).
Under 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State . . . to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens
. . . .” 42 U.S.C. § 1981(a). Title VII 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). Claims of race discrimination under § 1981 are analyzed
in the same manner as claims brought under Title VII. Rice-Lamar v. City of Fort
Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000), cert. denied, 534 U.S. 815
6
(2001) (citation omitted).
To establish a prima facie case of the discriminatory elimination of a
position under Title VII, a plaintiff may show “(1) that [he] was in a protected
[class] and was adversely affected by an employment decision, (2) that [he] was
qualified for [his] current position or to assume another position at the time of
discharge, and (3) evidence by which a fact finder could reasonably conclude that
the employer intended to discriminate . . . in reaching that decision.” Smith v. J.
Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003) (per curiam) (internal
quotation marks and citation omitted). To establish intent, a plaintiff needs to
proffer evidence that could lead a fact finder to conclude that “(1) [the] defendant
consciously refused to consider retaining a plaintiff because of his [race], or (2)
[the] defendant regarded [race] as a negative factor in such consideration.” Allison
v. W. Union Tel. Co., 680 F.2d 1318, 1321 (11th Cir. 1982) (citation omitted).
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). To establish a prima facie case of retaliation under Title VII, a
plaintiff must show that: (1) he engaged in a protected activity; (2) he suffered an
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adverse employment action; and (3) a causal connection between the protected
activity and the adverse employment action. Crawford v. Carroll, 529 F.3d 961,
970 (11th Cir. 2008) (citation omitted). The causal connection prong requires a
plaintiff to show “that the decision-makers were aware of the protected conduct,
and that the protected activity and the adverse action were not wholly unrelated.”
McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008), cert. denied, 129 S. Ct.
404 (2008) (internal quotation marks, alterations, and citations omitted). A causal
connection can be established by the close temporal proximity between the
protected activity and the adverse action. Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007) (per curiam) (citation omitted).
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, 411 U.S. 792, 93 S. Ct. 1817
(1973). Under the McDonnell Douglas framework, a plaintiff has the initial
burden to establish a prima facie case of discrimination, which, if sustained,
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)
(citations omitted).
If the plaintiff establishes a prima facie case, the burden of production shifts
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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 that the employer’s
offered reason was not the true reason for its decision, “either directly by
persuading the 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) (internal quotation marks and citation 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) (citations
and footnote omitted). To survive summary judgment, “a plaintiff must produce
sufficient evidence for a reasonable factfinder to conclude that each of the
employer’s proffered nondiscriminatory reasons is pretextual.” Id. at 1037. A
plaintiff can establish pretext by demonstrating “such weaknesses, implausibilities,
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inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th
Cir. 1997), cert. denied, 522 U.S. 1045 (1998) (internal quotation marks and
citation omitted).
Here, the record showed that both WCI and the Woodruff Fund, from which
Hill was paid, were running budget deficits; the program that Hill was hired to
develop had moved into a maintenance phase that required less of Hill’s time and
was handled primarily by an outside vendor; and, Hill’s remaining job duties were
shared among lower-earning employees after his termination. Hill did not show
that these stated reasons for his termination were pretextual. Therefore, Hill did
not establish that the district court erred in granting summary judgment to the
defendants on his termination or retaliation claims.
III. Wage discrimination
Hill also argues that he established a prima facie case of wage discrimination
because the two employees he identified, Hubbard and Michael Graiser, who are
both Caucasian, were similarly situated to him. Hill notes that he was assigned
almost all of Hubbard’s projects in June 2004, thereby performing identical job
duties for much lower pay raises. Furthermore, when Hubbard was promoted to
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director, they shared a job title and reported to the same supervisor. Both Hill and
Hubbard established and managed a budget, served as technical experts to clients,
oversaw the administration of GSI data, and supervised a staff of professionals. In
addition, Hill asserts that he was similarly situated with Graiser because both “used
users, technologies, vendors” and “did some of the same work.”
In order to establish a prima facie case of intentional compensation
discrimination based on race, the plaintiff must establish that: (1) he belongs to a
racial minority; (2) he received low wages; (3) similarly situated comparators
outside the protected class received higher compensation; and (4) he was qualified
to receive the higher wage. See MacPherson v. Univ. of Montevallo, 922 F.2d 766,
774 (11th Cir. 1991) (discussing wage discrimination in the ADEA context). We
have held that the denial of a pay raise can constitute an adverse employment
action that affects a plaintiff’s compensation. Gillis v. Ga. Dep’t of Corrs., 400
F.3d 883, 887 (11th Cir. 2005). We have held that a “comparator must be nearly
identical to the plaintiff to prevent courts from second-guessing a reasonable
decision by the employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091
(11th Cir. 2004).
Hill failed to establish a prima facie case of wage discrimination because he
did not establish the presence of any similarly situated comparators. The record
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demonstrates that both Hubbard’s and Graiser’s jobs involved different
responsibilities than Hill’s job. Furthermore, both Hubbard and Graiser received
salary increases when they presented their employer with evidence of a competing
offer of employment. In contrast, Hill never received a competing offer of
employment. Therefore, Hill, Hubbard, and Grasier were not “similarly situated in
all relevant respects.” Id. (internal quotation marks and citation omitted). We find
no error in the district court’s grant of summary judgement to the defendants on
Hill’s wage discrimination claim.
IV. Hostile work environment
Hill further contends that the district court erred by granting summary
judgment to the defendants on his hostile work environment claim because he
established that he experienced severe and pervasive harassment. Hill argues that
he experienced an unbroken chain of harassment that included: (1) a department-
wide “pulse check” to gauge morale, which resulted in a referral to a counseling
session for his workgroup; (2) a demotion in job title from director to manager
while at EHC; (3) the repeated denial of his requests for supporting office staff;
(4) the fact that one of his hiring decisions was denied, with Hubbard being hired
instead; (5) the denial of his request to attend an educational conference; (6) failure
to classify him as a regular WCI employee instead of a “chargeback” employee
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associated with EHC; (7) the failure to assign him any direct reports; (8) the failure
to assign him office space; (9) the failure to award him pay raises comparable to
Hubbard and Graiser; (10) the failure to reabsorb him after his job was terminated
or provide him with a list of available job openings; and (11) the termination of his
employment.
To establish a hostile work environment claim pursuant to Title VII, a
plaintiff must prove “that 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) (internal quotation marks and citation omitted). The employee has the
burden of proving a hostile work environment claim. To establish such a claim, a
plaintiff must show: “(1) that he belongs to a protected group; (2) that he has been
subject to unwelcome harassment; (3) that the harassment must have been based on
a protected characteristic . . . such as [race]; (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.” Id. at 1275 (citation omitted). The requirement that the
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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
quotation marks, alterations and citation omitted).
In evaluating the objective severity of the harassment, we look at the totality
of the circumstances and consider: “(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. We agree with
the district court that the employment actions cited by Hill were not so objectively
severe or pervasive as to alter the terms and conditions of his employment.
Although he may have been subjectively humiliated, Hill’s cited actions are
objectively neither threatening nor humiliating. Therefore, the district court did
not err in granting summary judgment to the defendants on Hill’s hostile work
environment claim.
V. State negligent retention claim
Finally, Hill argues that his state negligent retention claim should be allowed
to proceed because he persistently complained to human resources, WCI’s
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Executive Director Jonathan Simons, Murdock, and others about the
discrimination, but they failed to act to correct it. However, his Georgia law
negative retention claim is an “essentially derivative” claim that survives summary
judgment only if the substantive claims on which it was based also survive. See
Phinazee v. Interstate Nationalease, Inc., 514 S.E.2d 843, 846 (Ga. Ct. App. 1999).
Here, the district court properly granted summary judgment to the defendants on
Hill’s derivative state negligent retention claim because summary judgment was
appropriate for the other substantive claims.
VI. Conclusion
Upon thorough review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm.
AFFIRMED.
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