[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 23, 2009
No. 08-16136 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00090-CV-CDL-3
SANDRA D. THOMPSON,
Plaintiff-Appellant,
versus
CARRIER CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 23, 2009)
Before BLACK, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Sandra D. Thompson, an African-American female and Christian, appeals
pro se the district court’s grant of summary judgment in favor of the defendant in
her employment discrimination and retaliation suit, filed pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) and -3(a). Thompson sued
her former employer Carrier Corp. after she was terminated from her job as a
technician in February 2006. After a careful review of the record, we affirm the
judgment of the district court.
We review a district court’s grant of summary judgment de novo. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (per curiam).
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and
compels judgment as a matter of law. Id. “There is no genuine issue of material
fact if the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which the party will
bear the burden of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538 (11th
Cir. 1989) (citation omitted). “Genuine disputes are those in which the evidence is
such that a reasonable jury could return a verdict for the non-movant.” Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quotation omitted).
Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed. Mamone v. United States, 559
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F.3d 1209, 1210 n.1 (11th Cir. 2009) (per curiam).
Under Title VII, it is unlawful for an employer “to fail or refuse to hire or 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, [or] sex.” 42 U.S.C. §
2000e-2(a)(1). A plaintiff may establish a claim of discrimination under Title VII
by direct or circumstantial evidence, and when only the latter is relied on, we use
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). See Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1087 (11th Cir. 2004). “Under this framework, the plaintiff first has the
burden of establishing a prima facie case of discrimination, which creates a
rebuttable presumption that the employer acted illegally.” Id.
According to the McDonnell Douglas framework, after a plaintiff establishes
his prima facie case of discrimination or retaliation, the employer must articulate
one or more legitimate, nondiscriminatory reasons for the challenged employment
action. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).
If an employer articulates one or more legitimate reasons, the plaintiff, to avoid
summary judgment, must produce evidence sufficient to allow a reasonable fact
finder to conclude that the employer’s reasons were pretextual. Id. at 1024–25.
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“Provided that the proffered reason is one that might motivate a reasonable
employer, an employee must meet that reason head on and rebut it.” Id. at 1030.
A plaintiff’s evidence of pretext “must reveal such weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions in the employer’s proffered
legitimate reasons for its actions that a reasonable factfinder could find them
unworthy of credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771
(11th Cir. 2005) (per curiam) (quotation omitted).
I. Failure to Promote
Thompson asks this Court to reinstate her failure-to-promote claim, which
she previously withdrew, through counsel, after acknowledging that it was
untimely. Thompson also addresses the merits of her failure-to-promote claim,
arguing that she clearly established that her being denied a promotion was
intentional discrimination in the workplace because she had filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (EEOC). A
plaintiff seeking redress under Title VII must file a charge of discrimination with
the EEOC within 180 days of the alleged discriminatory act. See 42 U.S.C. §
2000e-5(e)(1). We have held that the failure to file a timely charge bars a
subsequent claim. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 662 (11th Cir.
1993).
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A plaintiff can establish a prima facie case of failure to promote by showing
that (1) he is a member of a protected class; (2) he was qualified for and applied for
the promotion; (3) he was rejected despite his qualifications; and (4) other
employees, who were equally or less qualified but were not members of the
protected class, were promoted. Wilson, 376 F.3d at 1089. Here, Thompson has
not made a showing that her employer’s stated reasons for promoting her coworker
instead of her were pretextual. Thompson’s assertion, standing by itself, that she
was more qualified than her coworker does not go far enough to establish a
disparity in qualifications “of such weight and significance” that renders her
employer’s reasons a pretext. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 457,
126 S. Ct. 1195, 1197 (2006) (quoting Cooper v. S. Co., 390 F.3d 695, 732 (11th
Cir. 2004)). Moreover, Thompson expressly withdrew her claim, and she filed her
EEOC charge more than 180 days after the promotion decision. The district court
did not err in granting the defendant’s motion for summary judgment as to
Thompson’s failure-to-promote claim.
II. Termination
Thompson claims that she was wrongfully terminated from her job, and she
disagrees that she disobeyed her supervisor’s instructions. Thompson argues that
the district court erred in relying on the statements of her three coworkers about her
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disobedience because the statements were not in affidavit form, the coworkers all
had motivation to be untruthful, and they simply could have not seen or heard what
they claimed to have seen and heard. Finally, Thompson claims that she was
terminated without proper disciplinary action as there were no adverse actions in
her employment file. These arguments fail.
A plaintiff can establish a prima facie case of discrimination based on
circumstantial evidence by showing that: “(1) he is a member of a protected class;
(2) he was qualified for the position; (3) he suffered an adverse employment
action; and (4) he . . . was treated less favorably than a similarly-situated individual
outside his protected class.” Maynard v. Bd. of Regents, 342 F.3d 1281, 1289
(11th Cir. 2003). Additionally, “[t]he inquiry into pretext centers upon the
employer’s beliefs, and not the employee’s own perceptions of his performance.”
Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (per curiam) (citation
omitted).
Thompson failed to establish the fourth prong of the prima facie case, in that
she could point to no non-minority coworker who allegedly disobeyed a
supervisor’s orders and yet was not terminated. Even if we were to grant her that
point, Thompson still would not prevail because she has failed to create any factual
issue, beyond her own denials, that she did disobey her supervisor and that
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therefore the employer’s reasons were pretextual. As Holifield notes, the inquiry
here focuses on the perception of the employer. The district court did not err in
granting the defendant’s motion for summary judgment as to Thompson’s
discriminatory discharge claim because (1) Thompson did not prove a prima facie
case of discrimination as she did not produce evidence showing that she was
treated less favorably than a similarly-situated individual outside of her protected
class; and (2) even if Thompson were able to prove a prima facie case of
discriminatory discharge, she did not prove that the defendant’s reason for
discharging her—that she failed to follow her supervisor’s orders—was pretext for
discrimination.
III. Harassment
Thompson argues that she was subject to a hostile work environment based
on several incidents: (1) she was disciplined for taking time off work when male
coworkers were not; (2) her supervisor changed her personal time accounting in the
computer, causing her to receive a warning; (3) someone glued her locker shut; (4)
her supervisor made a false claim that she complained about a coworker; (5)
someone put a coffee cup as the background on her computer; (6) management and
other employees beat on cardboard to harass her for sleeping on the job, but men
who slept on the job were not harassed; (7) management observed her more than
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any other employee; and (8) a coworker told her that if she was a Christian she
should be able to handle the harassment. Thompson claims that the men working
in her department were not subject to the same treatment or harassment.
A hostile work environment is one “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370
(1993) (quotations and citations omitted). To establish a prima facie claim of
harassment, a plaintiff must show that (1) he belongs to a protected group, (2) he
has been subject to unwelcome harassment, (3) the harassment was based on a
protected characteristic of the employee, such as gender, (4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment, and (5) there is a basis
for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245
(11th Cir. 1999) (en banc). In determining whether actions alter the terms and
conditions of employment under the “severe or pervasive” prong, we consider the
following factors: “(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
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the employee’s job performance.” Id. at 1246 (citation omitted).
Thompson failed to show that any harassment she suffered was based on a
protected characteristic such as race, gender, or religion. She acknowledged that
some of the harassment stemmed from her tendency to fall asleep on the job, and
from litigation she pursued against a former employer. The two complaints with
an arguably religious theme—a “nasty look” about a shirt mentioning religion, and
the comment about a Christian being able to handle harassment—fail to rise to the
level of severe or pervasive harassment required by law. The district court did not
err in granting the defendant’s motion for summary judgment as to Thompson’s
harassment claim. “Title VII is not a federal civility code.” Mendoza, 195 F.3d at
1245 (quotation omitted).
IV. Retaliation
Thompson claims retaliation resulting from the charge questionnaire she
filed with the EEOC in October 2005. She also claims that she was given a
negative employment evaluation around the time she was submitting her Charge of
Discrimination. Thompson also argues that her EEOC Charge should be
considered a basis for her retaliation claim because she was in the process of
submitting it when she was terminated. Thompson also claims that she was
retaliated against for complaining to management about being harassed by her
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supervisor.
Title VII prohibits an employer from retaliating against an employee
“because [the employee] has opposed any” unlawful discrimination “or because
[the employee] has made a charge, testified, assisted, or participated in any manner
in an investigation” of discrimination by the EEOC. 42 U.S.C. § 2000e-3(a). A
plaintiff can establish a prima facie case of retaliation under Title VII by showing
that “(1) he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there is some causal relation between the two events.”
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (quotation
omitted).
Even if an employer’s actions do not constitute an unlawful employment
practice, a plaintiff can sufficiently allege a prima facie case of retaliation by
showing that he reasonably believed his employer was violating Title VII, and he
opposed such actions. Butler v. Ala. DOT, 536 F.3d 1209, 1213 (11th Cir. 2008).
However, “[a] plaintiff must not only show that he subjectively (that is, in good
faith) believed that his employer was engaged in unlawful employment practices,
but also that his belief was objectively reasonable in light of the facts and record
presented.” Id. (quotation and emphasis omitted).
Defendant Carrier Corp. argues that Thompson cannot claim retaliation
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because Thompson filed her EEOC charge after her termination. The defendant
also argues that Thompson’s charge questionnaire cannot be the basis of a
retaliation claim because Thompson proffered no evidence that Carrier knew
Thompson was complaining to the EEOC.
While it is true that Thompson filed the questionnaire before her firing,
Thompson has failed to adduce evidence that the questionnaire caused the firing.
And, the four-and-a-half-month gap between the two events cuts against her on
Pennington’s causation prong. Moreover, inasmuch as Thompson acknowledged
that her sleeping on the job and her litigation against a former employer were at the
root of incidents with coworkers, she cannot claim that she objectively believed her
employer was engaging in proscribed discrimination. The district court did not err
in granting the defendant’s motion for summary judgment as to Thompson’s
retaliation claim because (1) her belief that she was opposing Title VII violations
was unreasonable; and (2) she did not allege or present any evidence showing that
the defendant’s reasons for firing her were pretextual. Accordingly, we affirm the
judgment of the district court.
AFFIRMED.
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