Webb-Edwards v. Orange County Sheriff's Office

                                                                   [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              April 22, 2008
                              No. 07-12599                  THOMAS K. KAHN
                        ________________________                CLERK


                 D. C. Docket No. 05-01149-CV-ORL-22-KRS

ELAINE WEBB-EDWARDS,

                                                             Plaintiff-Appellant-
                                                                Cross-Appellee,

                                    versus

ORANGE COUNTY SHERIFF’S OFFICE,

                                                                     Defendant,

KEVIN BEARY, in his official capacity
as Orange County Sheriff,

                                                            Defendant-Appellee-
                                                               Cross-Appellant.

                        ________________________

                 Appeals from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (April 22, 2008)
Before EDMONDSON, Chief Judge, HILL and ALARCÓN,* Circuit Judges.

ALARCÓN, Circuit Judge:

       Elaine Webb-Edwards has appealed from the final judgment entered against

her rejecting each of the claims set forth in her amended complaint. She contends

that the District Court erred in granting Sheriff Kevin Beary’s (“the County”)

motion for a summary judgment dismissing her claims for sexual harassment. In

granting the motion, the District Court concluded that Ms. Webb-Edwards did not

demonstrate that she was subjected to suffering pervasive harassment to constitute

a hostile and adverse work environment.

       She also challenges the District Court’s conclusion that the record showed

that the County exercised reasonable care to prevent and correct any sexual

harassing behavior, and that Ms. Webb-Edwards unreasonably failed to take

advantage of her employers corrective measures or to avoid any harm to her. Ms.

Webb-Edwards also seeks reversal of the dismissal of her retaliation claim based

on the District Court’s determination that she failed to demonstrate that the

decision not to appoint her as the School Resource Officer (“SRO”) at the Gateway

Middle School was based on her gender.




       *
         Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

                                                2
      In addition, Ms. Webb-Edwards seeks reversal of the order granting

judgment as a matter of law, pursuant to Rule 50(a) of the Federal Rules of Civil

Procedure, of her claims for her gender discrimination and constructive discharge.

After reviewing the record, we are persuaded that the District Court did not err and

conclude that the judgment must stand.

                                            I

                                           A

      The District Court granted the County’s motion for summary judgment

dismissing Ms. Webb-Edwards’s sexual harassment based on the evidence

presented to it by the parties at that stage of the proceedings. The facts set forth in

Ms. Webb-Edwards’s opposition demonstrate that she was hired by the Orange

County Sheriff’s Office in July1995 as a deputy sheriff. In May 2000, she was

assigned to the property division.

      In February 2004, Sgt. Richard Mankewich was transferred to the Sector 1

property unit. He was assigned to supervise Ms. Webb-Edwards and four other

detectives. Lt. Joseph Picanzo oversaw Sgt. Mankewich’s performance.

      Beginning the first week Sgt. Mankewich transferred to Sector 1, he started

making comments to Ms. Webb-Edwards that she felt were inappropriate and

sexual in nature. For example, Ms. Webb-Edwards alleged that he would say to



                                           3
her “that looks hot or you look hot.” Sgt. Mankewich also told her that she

“looked hot, but it would look better if you’d wear tighter clothes.”

      Similar comments were made once a week and on occasion twice a day.

When Ms. Webb-Edwards asked how his wife was doing, Sgt. Mankewich replied:

“She’d be better if she’d wear tighter clothes.” On one occasion, Ms. Webb-

Edwards submitted a request for time off. Sgt. Mankewich replied: “Well, if you

start wearing tighter clothes, then you’ll get it.” He also stated to Ms. Webb-

Edwards at a meeting where other detectives were present: “You know, Elaine,

women who change their hair color usually have issues at home.” In response to

Sgt. Mankewich’s unwelcome comments, Ms. Webb-Edwards testified in her

deposition that she told him to stop, or that he was sick, or just walked away to try

to avoid him.

      In her deposition, Ms. Webb-Edwards testified that when she and Sgt.

Mankewich were in the car together driving to take a witness’s statement, her

husband telephoned her, and asked her if she had lunch plans. Before she could

reply, Sgt. Mankewich grabbed the telephone and told her husband: “I don’t know

what you’re saying, but I’m eating your wife.”

      On April 20, 2004, Ms. Webb-Edwards told Sgt. Mankewich, in a closed-

door meeting in his office, that his comments made her feel uncomfortable. He



                                           4
told her that if she reported him, she would not “be getting any other position.”

After that conversation, Sgt. Mankewich did not make any further comments about

her appearance, but he continued to look at her in a way she deemed inappropriate.

      On April 21, 2004, Ms. Webb-Edwards met with Lt. Mike McKinley. She

told him about Sgt. Mankewich’s comments about wearing tighter clothes. She did

not tell him about Sgt. Mankewich’s crude comment to her husband. After hearing

Ms. Webb-Edwards’s allegations, Lt. McKinley immediately moved her workplace

to a different office about twenty minutes away from Sector 1 while her complaint

against Sgt. Mankewich was investigated.

      Several days later, Ms. Webb-Edwards met with Lt. Picanzo. She repeated

the allegations she related to Lt. McKinley. She did not disclose Sgt. Mankewich’s

lunch comment to Lt. Picanzo. Lt. Picanzo stated that Sgt. Mankewich had

supervision problems and needed training to correct them. The next day Lt.

Picanzo met with Ms. Webb-Edwards, Sgt. Mankewich, and Captain Tom Foster.

The purpose of the meeting was to address Sgt. Mankewich’s supervisory

problems. Lt. Picanzo arranged a second meeting with Ms. Webb-Edwards,

Detective Chris Saccano, and Sgt. Mankewich. After attending this meeting, Ms.

Webb-Edwards agreed to return to her regular shift under Sgt. Mankewich’s

supervision. Her benefits and wages were not changed.



                                          5
      Around May 10, 2004, Ms. Webb-Edwdards’s husband informed Sgt.

Dennis Strange that Sgt. Mankewich’s made comments about “tight clothes.” Ms.

Webb-Edwards’s husband was also employed as a deputy sheriff with the Orange

County Sheriff’s Office. Officer Edwards told Sgt. Strange about Sgt.

Mankewich’s crude comment about eating his wife for lunch.

      On May 11, 2004, Sgt. Strange wrote a memorandum setting forth Officer

Edwards’s report. He also confirmed the details of the conversation with Ms.

Webb-Edwards. Sgt. Strange’s memorandum was addressed to Chief Ron Stucker

in the Professional Standards Division. The next day, Daniel W. Ford, the Director

of Human Resources, held a meeting with Ms. Webb-Edwards and Captain Tom

Foster to address her complaint against Sgt. Mankewich. Ms. Webb-Edwards

informed Director Ford, and Captain Foster that she had not informed Lt.

McKinley about the lunch comment. At the meeting, Director Ford told Ms.

Webb-Edwards that she had several options. She could either stay in Sector 1

under Sgt. Mankewich’s supervision or transfer to Sector 3. Director Ford also

advised her that he would facilitate mediation between Ms. Webb-Edwards and

Sgt. Mankewich. Ms. Webb-Edwards agreed to participate in mediation if she

could keep her same work schedule, transfer to Sector 3, and receive an apology

letter from Sgt. Mankewich. On May 23, 2004, Ms. Webb-Edwards was



                                        6
transferred to Sector 3. In addition to maintaining the benefits and hours she had

in Sector 1, she was further accommodated to have Wednesdays off. Sgt.

Mankewich wrote a letter apologizing for his behavior.

      On June 18, 2004, Ms. Webb-Edwards mailed a letter to Director Ford in

which she stated that she wanted to pursue mediation with Sgt. Mankewich. She

also informed Director Ford that she was in a “positive atmosphere where there

[was] mutual respect.” During the rest of her employment in the Orange County

Sheriff’s Office, she did not complain of inappropriate conduct by Sgt.

Mankewich.

                                          B

      On August 8, 2005, Ms. Webb-Edwards filed a complaint against the

Orange County Sheriff’s Office. She alleged in Count I that she was discriminated

against “on the basis of sex, and the terms, conditions and privileges of

employment in violation of 42 U.S.C. § 2000(e) et seq.” In paragraphs numbered

six through ten of Count I, she alleged that she was subjected to sexual harassment

by Sgt. Mankewich. In paragraph 11 of Count I, she alleged that, “Defendant

discriminated against the Plaintiff as to the terms and conditions of her

employment on the basis of her sex in violation of Title VII. Plaintiff incorporates

by reference paragraph 19.f. in Count II as if fully set forth herein.” In paragraph



                                          7
19.f. of Count II, Ms. Webb-Edwards alleged that the denial of a position as a SRO

was “both discriminatory and retaliatory” due to the complaints she made against

her supervisor because of Sgt. Mankewich’s sexual harassment. In Count III, she

alleged a common law action for negligent retention.

      On August 15, 2005, the County filed a motion to dismiss the complaint on

the ground that the Orange County Sheriff’s Office is not a party capable of being

sued under Florida law. On August 29, 2005, Ms. Webb-Edwards filed a motion

to substitute the name of Kevin Beary, in his official capacity as the Sheriff of

Orange County for the named defendant. The District Court granted the motion to

substitute the party defendant and dismissed the Orange County Sheriff’s Office’s

motion as moot.

      On September 7, 2005, Ms. Webb-Edwards filed an amended complaint.

The initial paragraph reads as follows: “Plaintiff, Elaine Webb-Edwards, files this

her Amended Complaint against Defendant, Kevin Beary, in his official capacity as

Orange County Sheriff for sexual harassment retaliation, and negligent retention.”

This statement did not allege gender discrimination. The allegations in Count I, II,

and III were the same as those set forth in the original complaint.

      On September 16, 2005, the County filed its answer to the amended

complaint. It denied the truth of the allegations set forth in paragraphs six, seven,



                                           8
eight, nine, ten, eleven, and 12. The County admitted that “Plaintiff’s Amended

Complaint purports to state a cause of action under Title VII of the Civil Rights

Act of 1964 for harassment on the basis of sex.” The answer does not refer to

gender discrimination. However, as noted above, he denied the allegations set

forth in paragraph 11 of Count I.

         On September 29, 2005, the District Court dismissed the negligent retention

claim sua sponte.1

         On November 3, 2005, the County filed a motion for summary judgment. It

asserted that Ms. Webb-Edwards had failed to establish a genuine issue of material

fact as to her claim of sexual harassment or retaliation, as alleged in Count I and

Count II of the amended complaint. In the introduction to its motion, the County

stated that “Plaintiff Elaine Webb-Edwards’s (hereinafter “Plaintiff”) Amended

Complaint seeks to hold Kevin Beary, in his official capacity as Orange County

Sheriff liable for hostile work environment sexual harassment and retaliation in

violation of Title VII of the Civil Rights Act of 1964 as amended (“Title VII”).”

         The County also asserted that all employment actions taken by Sheriff Beary

were for legitimate business reasons. It also alleged as an affirmative defense that

the County maintains and enforces a policy against harassment and retaliation and


         1
             Ms. Webb-Edwards has not appealed from the dismissal of the negligent retention
claim.

                                                  9
provides to employees a mechanism through which to address such claims. The

County argued that her failure to invoke and exhaust these available remedies bars

her claims.

       On December 1, 2006, Ms. Webb-Edwards filed her trial brief in this action.

She asserted therein that “[t]he plaintiff has a two-count lawsuit. Count I is for

gender discrimination which encompasses both sexual harassment and failure to

place Plaintiff in an SRO position. Count II is for retaliation which ultimately

resulted in constructive discharge.”

       On December 4, 2006, Ms. Webb-Edwards filed a memorandum in

opposition to the County’s motion for summary judgment. She noted that the

County “has only addressed the sexual harassment position and not the refusal to

place the Plaintiff in a SRO position, see paragraph 11 of the Amended Complaint.

The failure to place the Plaintiff in the SRO position is also a key element of Count

II, the retaliation claim.”

       On December 8, 2006, the County filed a motion to strike the allegations of

gender discrimination in Ms. Webb-Edwards’s trial brief and her response to his

motion for summary judgment. It asserted that “Plaintiff has alleged gender

discrimination regarding not being offered the Gateway Resource Officer

(Gateway “SRO”) position for the first time during this litigation.” The County



                                          10
further asserted that gender discrimination was not alleged in Ms. Webb-Edwards’s

EEOC charge, nor was it alleged in her amended complaint with the specificity

required by Rule 8(e) and Rule 10(b) of the Federal Rules of Civil Procedure. It

contended that commingling two causes of action in one count violated Rule 10(b).

Ms. Webb-Edwards filed an opposition to the motion to strike in which she

asserted that a gender discrimination claim was set forth in paragraph I of the

amended complaint.

      The District Court granted the County’s motion for summary judgment as to

Ms. Webb-Edwards’s sexual and retaliation causes of action. The District Court

denied the County’s motion for summary judgment regarding the gender

discrimination cause of action. It concluded that “[t]here are sufficient issues for

trial in Plaintiff’s complaints for gender discrimination by sexual harassment,

gender discrimination by failure to place the Plaintiff in an SRO position and

retaliation resulting in constructive discharge.” It also denied the County’s motion

to strike the allegation of gender discrimination. The Court agreed with the County

that “Plaintiff’s Amended Complaint is poorly organized and difficult to read.” It

concluded, however, that the County’s argument was untimely because he

“[s]hould have made this argument in response to the Amended Complaint.” The

District Court stated that the gender discrimination claim is alleged in the amended



                                          11
complaint, therefore the County was on notice of that cause of action. The District

Court ordered the parties to refile their pretrial statements “focusing on the only

remaining issue to be tried, gender discrimination.”

                                          C

      Ms. Webb-Edwards testified during the trial that on July 27, 2004, the

Orange County Sheriff’s Office posted an announcement of a vacancy in the

position of SRO. Ms. Webb-Edwards met the qualifications for the position. She

applied for the position on or about August 4, 2004.

      Prior to becoming a law enforcement officer, M. Webb-Edwards was a

campus advisor at Sea Breeze High School. She served in liaison capacity for the

school with the SRO. She patrolled with the SRO to break up fights and make sure

students were in school. She also was the head coach of the boys’ volleyball team,

and the girls’ softball team.

      Ms. Webb-Edwards was interviewed on September 9, 2004, for a SRO

position before a three-person transfer review board. After interviewing each of

the applicants, the board tallied up the scores and ranked the four applicants. Ms.

Webb-Edwards was ranked second.

      SRO positions were available at Piedmont Lakes and Gateway Middle

School at that time. The person who was ranked first received an appointment to



                                          12
Piedmont Lakes. Ms. Webb-Edwards received a memorandum dated October 25,

2004, that the position at Gateway Middle School had been filled. Prior to

receiving this memorandum, Ms. Webb-Edwards had been informed by several

officers that she would not be appointed to serve as the SRO at Gateway Middle

School, notwithstanding the fact that she was number two on the list of successful

applicants.

       Ms. Webb-Edwards attempted to contact Director Ford by telephone. He

did not reply. On October 22, 2004, she sent an e-mail to Director Ford in which

she stated she wanted to talk to him because she “was having some issues.” On

October 28, 2004, she went to Director Ford’s office and spoke to his secretary.

She told her that she had been passed over for the SRO position at Gateway Middle

School. She requested that Director Ford telephone her. Director Ford did not

call her.

       On November 9, 2004, Ms. Webb-Edwards sent a letter of resignation to

Director Ford at 2:23 p.m. to be effective on December 31, 2004. In her

memorandum, she requested a meeting with a representative from Director Ford’s

office to discuss changing her insurance and other matters regarding her “early

retirement.”




                                         13
      Ms. Webb-Edwards testified that she decided to resign because “she was

emotionally a wreck.” Her physician stated her medical condition was “stress

related.”

      Less than two hours later, at 4:10 p.m., Ms. Webb-Edwards received an e-

mail from Director Ford. It stated as follows:

             Elaine: Commander Chatman, and I tried to contact you
             this afternoon to advise you we are working on a
             resolution to the issues of your transfer to an SRO
             position. Before I accept your resignation and we
             finalize this matter, I would like to talk to you about it.
             Please call me on my cell phone.

Ms. Webb-Edwards testified that she did not call Director Ford as he had requested

because she was emotionally upset and the e-mail did not change her decision to

resign. Prior to receiving Director Ford’s memorandum, Commander Julia

Chatman had orally offered her the SRO position at Conway Middle School.

      At 5:18 p.m., Director Ford sent another e-mail to Ms. Webb-Edwards. It

reads as follows:

             Elaine, I just spoke with Commander Chatman. She
             advised me that she has spoken to you and offered you
             the position as SRO at Conway Middle School. This has
             been approved by Chief Hollomon and Undersheriff
             Stewart. I know Julia has expressed to you, as well as
             myself, her desire to have you come to work for her.
             Please take a couple of days to think about this and call
             Julia back and let her know whether you would like to
             have the position in lieu of resigning. I realize you told


                                          14
             her tonight you did not want the position, but I will still
             like for you to think about it. So, please take a few days
             to make your final decision. If you would like to speak
             with me about it tomorrow, please call me on my cell
             phone at 407. . ., or call Maria and give her a number
             where you can be reached, and she will track me down. I
             am going on personal leave beginning on Thursday, so
             please call me tomorrow.

      Ms. Webb-Edwards did not withdraw her letter of resignation. She was not

told that her employment would be terminated because she had tendered her

resignation. Her last day at work was December 12, 2004. She remained on the

payroll until January 4, 2005 because she had accumulated vacation time.

      Ms. Webb-Edwards was aware that the Orange County Sheriff’s Office had

a policy that permitted employees to complain about gender discrimination. She

did not file a written complaint about gender discrimination.

      Ms. Webb-Edwards testified that, had she not resigned, she would have

continued to be employed as a property detective in Sector 3 at the same salary and

benefits. She was not requested to resign from that position because of her refusal

to accept a transfer to serve as a SRO at the Conway Middle School.

      Commander Chatman testified that the ratings of the four applicants for the

SRO position were approved by Sheriff Beary. The position at Gateway Middle

School was offered to Deputy Sheriff John Leone who was ranked number 3 on the




                                         15
list of applicants. The failure to transfer Ms. Webb-Edwards to the SRO position at

Gateway Middle School was a deviation from the rankings.

      Commander Chatman was informed by Ms. Webb-Edwards that she had

been bypassed on November 9, 2004. Ms. Webb-Edwards also informed

Commander Chatman on the same date that she had submitted her resignation on

November 9, 2004. Commander Chatman informed Director Ford of Ms. Webb-

Edwards’s conversation later that day. Commander Chatman told Director Ford

she thought Ms. Webb-Edwards had been treated unfairly in being passed over

because she was a female.

      Commander Chatman testified that Chief Jim Hollomon was the decision

maker regarding the filling of SRO positions. She stated that an applicant for an

SRO position does not apply for a particular school. A deputy can be assigned to

any SRO position that becomes available. If an applicant denies a SRO position

that is offered to him or her, he or she is taken off the list to avoid “shopping

around.” If an applicant is transferred to a SRO position at a particular school, he

or she may be laterally transferred to another school.

      Commander Chatman testified that at schools other than Gateway Middle

School, a SRO’s duties include teaching “gang resistance” to the students. At

Gateway Middle School, however, a SRO does not have time to teach “because



                                           16
you’re going from classroom to classroom or breaking up a fight in the hallway or

assisting in the office with a student that either has--acted out is how they use the

word. So, you really don’t have time to actually give instructions.” She further

testified that the duties of a SRO at Gateway Middle School are different from

those performed at Conway Middle School.

      Commander Chatman also testified that a majority of the students at

Gateway Middle School have “criminal charges” and psychological or behavioral

problems. A majority are also on medication. At one point, Commander Chatman

recommended that two deputies be assigned to Gateway Middle School “for safety

reasons.”

      Commander Chatman testified that when she informed Director Ford that

Ms. Webb-Edwards has been bypassed, he became upset. He telephoned Chief

Hollomon. He told Chief Hollomon “Jim, you know I can’t do that. That’s why

we have a process.” Within an hour or two, the Undersheriff or Chief Hollomon

informed Director Ford that another position was open to offer to Ms. Webb-

Edwards.

      Director Ford instructed Commander Chapman to contact Ms. Webb-

Edwards and offer her the SRO position at Conway Middle School. When

Commander Chatman reached Ms. Webb-Edwards, Commander Chatman was told



                                           17
that the offer was too late and Director Ford would have to speak to her attorney.

Commander Chatman tried to convince Ms. Webb-Edwards to accept the Conway

Middle School SRO position because “she would be a good asset to the kids,

because we needed good school resource officers. We needed some good SRO

models.”

      Chief Jim Hollomon was called as an adverse witness. Chief Hollomon

testified that he was the final decision maker in placing SRO applicants. He

testified that ordinarily he would appoint disputes to a SRO position according to

the ranking by the transfer review board. Ms. Webb-Edwards was not transferred

to the SRO position at Gateway Middle School although she was eligible as the

second ranked applicant, notwithstanding the fact that the transfer review board’s

ranking was initially approved without deviation.

      Chief Hollomon testified he made the decision to deviate from the ranking in

filling the SRO vacancy at Gateway Middle School because “[s]he was not the

most qualified person for the position off the list.” He stated that “Gateway was a

final step for students with severe behavioral problems, and they weren’t able to

function safely in a regular school environment. He asserted that his criteria for

that assignment required someone who was “very physically imposing” and “had

the tactical background to handle that position” at Gateway Middle School. He



                                          18
concluded that Deputy Sheriff Leone was qualified because he had been a SWAT

team officer and was an instructor in defensive tactics. Chief Hollomon testified

that “out of the four candidates I saw only one that qualified.” If Deputy Sheriff

Leone declined the position, he planned to repost it for other applicants.

      Chief Hollomon testified on cross-examination that he was looking for

someone who was physically imposing to fill the SRO position at Gateway Middle

School because

             Gateway is a very unique situation. The student
             population there, you know, ranges from 12 to 22 years
             old. These are students who cannot function in a regular
             school atmosphere. They have – a lot have criminal
             records, arrest records, and emotional problems that pose
             a serious officer safety threat.

      Chief Hollomon testified that he was concerned for the safety of the officer

assigned to Gateway Middle School. He would also not put some males at

Gateway Middle School because “they’re simply not up to the task. This is a

special, special situation. And the more physically imposing and tactically sound

the person is at Gateway, the less problems you’re going to have.” Chief

Hollomon testified that he would not have assigned the male who placed number

one on the list at Gateway Middle School because he lacked the “[p]hysical stature

and tactical background and training.”




                                          19
      Chief Hollomon requested Undersheriff Stewart Malone’s permission to

deviate from the list to select a person with the special skills needed to handle

students with behavioral and medical problems. Sgt. Linda Newcome prepared a

memorandum dated March 5, 2004, that identified the significant problems at

Gateway Middle School. Chief Hollomon testified that

             Gateway was a final step for students with severe
             behavioral problems, and they weren’t able to function
             safely in a regular environment, students with severe
             conduct or emotional disorders. Sixty percent of those
             students are on medication, which include antipsychotic
             drugs, stimulants, antidepressants and mood stabilizers.
             Fifty percent of the students are clinically depressed.

      He also testified that some of the male students were larger than the adults

on campus. Their ages ranged from fourteen to twenty-two. Many of the students

had criminal histories. Sixty percent of the students were on probation for armed

robbery, carjacking with a firearm, battery on a law enforcement officer, and other

violent crimes. Forty-three students had been arrested on the Gateway Middle

School campus for battery on a law enforcement officer, battery on a school

employee, or possession of weapons and drugs. Chief Hollomon had previously

recommended that more than one SRO officer should be assigned to Gateway

Middle School and additional civil security guards were also needed. Chief

Hollomon testified that the position was offered to Deputy Sheriff Leone, who had



                                          20
placed number four on the list. Deputy Sheriff Leone had been on the Orange

County Sheriff’s Office’s SWAT team. Chief Hollomon was also aware that

Deputy Sheriff Leone had been an instructor in defensive tactics. Deputy Sheriff

Leone did not accept the SRO position at Gateway Middle School. Chief

Hollomon knew that Ms. Webb-Edwards was a property detective. He had seen

her in the gym. He would not have appointed a male to serve as a SRO at Gateway

Middle School of Ms. Webb-Edwards’s size and weight.

      Chief Hollomon was aware that Ms. Webb-Edwards had been offered a

position at Conway Middle School. He described that school as follows:

            Conway is a school that you’d want your son or daughter
            to attend. It is a very good atmosphere. The School
            Resource Officer there has an opportunity to make a
            difference through counseling, mentoring, teaching,
            coaching, doing all the after-school activities. It’s a very
            positive place to be as opposed to Gateway which is
            controlled chaos.

      Chief Hollomon approved the offer of the position at Conway Middle

School to Ms. Webb-Edwards because he felt “she would be a good fit there at

Conway Middle School.” The pay and the benefits there were the same.

      Ms. Webb-Edwards was not disciplined for refusing the SRO position at

Conway Middle School. Chief Hollomon testified that he did not believe he




                                         21
discriminated against Ms. Webb-Edwards by bypassing her from being placed as a

SRO at Gateway Middle School. He described his motivation as follows:

             I have no personal agenda here. My consideration is to
             put the best qualified person in a position. Gateway
             Middle School is a horrible place to work. I tried to put
             the person that I thought would probably go there, do a
             good job and more than anything else be safe. My
             intention really was to protect Elaine. I didn’t think that
             was a good place to put her. I think other people– like I
             said, the physically imposing, tactically sound people are
             better. The way I look at things is this: Officer safety
             first, last, and always. And that’s how I make my
             decisions.

      Ms. Webb-Edwards testified that when she entered the police academy it

was her intention to become a SRO at Sea Breeze High School where she had

previously worked as a campus advisor. During that employment she was assigned

to work with the SRO.

      When she was notified that she would not be transferred to Gateway Middle

School she was upset. She began to have chest pains. She went to a doctor in late

October because she thought she had a heart condition. After she had a CAT scan

of her heart, her physician determined her heart was functioning fine. He opined

that her symptoms were stress-related. She also had a rash on the palm of her

hand, the inside of her arms, and under and over her eyes.




                                          22
         Ms. Webb-Edwards testified that she decided to resign on November 9, at

2:23 p.m. because:

               I realized that the job that I had worked so hard for and
               done very well at and proven myself over and over and
               over again, was never going to be enough, because – and
               also the fact that the chain of command had really let me
               down. I believed in that. I’ve always believed as a law
               enforcement officer, in justice and always believed that
               the Orange County Sheriff’s Office was going to do the
               right thing, and I realized that wasn’t going to happen
               that no matter how hard I worked, it just wasn’t enough.

At 5:18 p.m., on the same date, approximately three hours after she submitted her

letter of resignation, Director Ford offered her the position as SRO at Conway

Middle School. Ms. Webb-Edwards testified that this offer was “too little too

late.”

         Ms. Webb-Edwards testified that she sought counseling for her condition in

May 2005 from a psychologist approximately six months after she resigned. The

psychologist referred her to Dr. Manuel Mota-Castillo who is a psychiatrist.

         Dr. Mota-Castillo testified that he first treated Ms. Webb-Edwards in May

2005. He testified that “she told me that for one year she has been trying to stop

worrying about what happened at work.” His notes revealed that she stated:

“Emotionally I have been a wreck. Not sleeping due to worries.” Based on her

history, Dr. Mota-Castillo diagnosed her as having an adjustment disorder with



                                           23
mixed emotional conditions due to her situation at work. He testified that an

adjustment disorder is a transient event. Dr. Mota-Castillo stated that her

prognosis was guarded because “she will need to find a solution to her situation for

her mental status to change.” Dr. Mota-Castillo prescribed some medicine to help

her cope with stress and depression.

      Ms. Webb-Edwards told Dr. Mota-Castillo that “she was more interested in

an apology than in getting money, that she would be frustrated if she just got a

payment and no apology.” Dr. Mota-Castillo could not recall whether she told

him that she was offered a SRO position on the day she announced her resignation.

Dr. Mota-Castillo saw her four or five times between May 13, 2005, and

November 16, 2005.

      Gus Bextram testified that he supervised Ms. Webb-Edwards for a year and

a half in 1993 and 1994 while she worked as a patrol officer at the Winter Park

Police Department. He testified that she handled herself very well when she

arrested a suspect who had a criminal history of violence. At the time of trial, Mr.

Bextram was a coordinator for the criminal justice program at Seminole

Community College. He served as a SRO officer for two years while he was a

member of the Winter Park Police Department. He stated that the most important

qualification for being a SRO is “to communicate with children.” He opined that



                                          24
an officer does not have to have military or SWAT team experience to serve as n

SRO. Mr. Bextram testified he had never been a SRO at Gateway Middle School.

      Laury Ralph Edwards, Ms. Webb-Edwards’s husband, testified on her

behalf. At the time of trial, he had served as a deputy sheriff for the Orange

County Sheriff’s office for almost thirteen years. He testified that his wife had

always wanted to be a SRO because she wanted to be involved with children, to

take part in extracurricular activities, and utilize the skills she had learned as a

campus advisor and coach before she became a law enforcement officer.

                                            D

      The trial in this matter commenced on March 19, 2007. After Ms. Webb-

Edwards rested her case in chief, the County made an oral motion pursuant to Rule

50(a) for judgment as a matter of law for dismissal of the gender discrimination

claim and the constructive discharge claim that was presented in the cause of action

for retaliation. The District Court granted the oral motion regarding the

constructive discharge claim. The District Court informed counsel that it would

reserve making a ruling on the Rule 50(a) motion regarding the gender

discrimination claim until after the jury rendered its verdict. The jury returned a

verdict for Ms. Webb-Edwards on the gender discrimination claim in the amount

of $500,000. Seventy-five thousand dollars was awarded for economic damages,



                                            25
and $425,000 was awarded for compensatory damages. After excusing the jury,

the Court permitted Sheriff Beary to supplement his Rule 50(a) motion in writing.

      On March 30, 2007, the County submitted a written motion for a directed

verdict on her gender discrimination claim pursuant to Rule 50(a). It asserted in its

motion that Ms. Webb-Edwards’s gender discrimination claim should be dismissed

because she did not prove that she suffered an adverse employment action when

she was passed over for the SRO position at Gateway Middle School. The County

requested that if the Court denied the Rule 50(a) motion, it should enter judgment

as a matter of law dismissing the award of economic damages.

      Ms. Webb-Edwards filed a motion for reconsideration of the dismissal of the

constructive discharge claim on April 3, 2007. On April 12, 2007, she filed an

opposition to the County’s written motion for a directed verdict and its motion to

alter or amend the verdict, or in the alternative, for a new trial. On May 4, 2007,

the District Court granted the County’s Rule 50(a) motion for judgment as a matter

of law and dismissed as moot its motion to alter or amend the verdict. It also

denied Ms. Webb-Edwards’s motion to reconsider the dismissal of her constructive

discharge claim. On May 7, 2007, the clerk entered the District Court’s judgment

dismissing this action on the merits and awarding costs to the County. On June 1,

2007, Ms. Webb-Edwards filed a notice of appeal from the final judgment entered



                                          26
on May 7, 2007, granting judgment in favor of the County, and the order granting

its motion for summary judgment entered on February 27, 2007. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

                                           II

         Ms. Webb-Edwards asserts that the District Court committed reversible error

in granting summary judgment in favor of the County regarding her sexual

harassment and retaliation claims. We review a district court’s grant of summary

judgment de novo, viewing the evidence in the light most favorable to the party

opposing the motion. See Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir.

2002).

               Summary judgment should be granted only when the
               pleadings, depositions, answers to interrogatories, and
               admissions on file, together with the affidavits, if any,
               show that there is no genuine issue as to any material fact
               and that the moving party is entitled to a judgment as a
               matter of law.

Springer v. Convergy Customer Management Group, Inc., 509 F.3d 1344, 1347

(11th Cir. 2007) (internal quotation marks omitted).

                                            A

         Ms. Webb-Edwards contends that the District Court erred in concluding that

Sgt. Mankewich’s conduct was not sufficiently severe and pervasive to alter the

terms and conditions of her employment and create an abusive and hostile work


                                           27
environment. Title VII provides that it is an unlawful employment practice for an

employer “to fail or refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his compensation, terms,

conditions, or privilege of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). “Sexual harassment is a

form of sex discrimination prohibited by Title VII,” Gupta v. Fla. Bd. of Regents,

212 F.3d 571, 582 (11th Cir. 2000).

       An employee must present evidence of the following elements to support a

cause of action for a hostile environment claim created by sexual harassment:

              (1) that he or she belongs to a protected group; (2) that
              the employee has been subject to unwelcome sexual
              harassment, such as sexual advances, requests for sexual
              favors, and other conduct of a sexual nature; (3) that the
              harassment must have been based on the sex 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) a basis for holding the
              employer liable.

Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc).2

       Ms. Webb-Edwards belongs to a protected group. The District Court

correctly rejected as frivolous the County’s contention that Sgt. Mankewich’s


       2
         [A]n employer may be vicariously liable for actionable hostile environment
discrimination caused by a supervisor with immediate or successively higher authority over the
employee-subject to an affirmative defense.” Mendoza, 195 F.3d at 1245 n.4.

                                               28
comments to Ms. Webb-Edwards were not based on her gender. The evidence,

when reviewed in the light most favorable to her, demonstrates Sgt. Mankewich’s

statements and conduct were unwelcome. She presented evidence that she told him

to stop and that he was sick. Sgt. Mankewich’s statements that she looked hot, that

she should wear tighter clothes, that he wished his wife wore hot clothes, and his

vulgar comment about lunch were unmistakenly gender based. It is undisputed

that Sgt. Mankewich was Ms. Webb-Edwards’s supervisor. Thus, Ms. Webb-

Edwards clearly demonstrated that she satisfied the first, second, third, and fifth

elements of her cause of action for hostile environment and sexual harassment.

      Ms. Webb-Edwards asserts that the evidence she offered in opposition to

Appellee’s motion for summary judgment demonstrates that there are genuine

issues of material fact in dispute regarding whether Sgt. Mankewich’s sexual

comments were sufficiently severe and pervasive to alter the terms and conditions

of her employment.

             [W]hether an environment is hostile or abusive can be
             determined only by looking at all the circumstances.
             These may include the frequency of the discriminatory
             conduct; its severity; whether it is physically threatening
             or humiliating, or a mere offensive utterance; and
             whether it unreasonably interferes with an employee’s
             work performance.

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).



                                          29
      Before this Court, the County does not dispute that Sgt. Mankewich’s

comments were discriminatory. Sgt. Mankewich made gender related comments

on at least a weekly basis, over an eight-week period. The record also shows,

however, that when Ms. Webb-Edwards told Sgt. Mankewich on April 20, 2004,

that his comments made her feel uncomfortable, his discriminatory conduct ceased.

Furthermore, when she reported to Lt. McKinley that Sgt. Mankewich’s comments

were unwelcome, she was immediately and temporarily moved to a different

workplace while her complaint was investigated.

      After attending two meetings with her supervisors and Sgt. Mankewich, Ms.

Webb-Edwards agreed to return to her former workplace under Sgt. Mankewich’s

supervision. Her employer was not informed of Sgt. Mankewich’s reprehensible

comment about eating Ms. Webb-Edwards for lunch until her husband informed

Sgt. Strange about that behavior on or about May 10, 2004. The day after

receiving Sgt. Strange’s memorandum, Director Ford met with Ms. Webb-

Edwards. Director Ford told her she could remain in Sector I under Sgt.

Mankewich’s supervision or transfer to Sector 3 with no change in her salary or

work shift. She elected to accept a transfer to Sector 3 so that she would not be

supervised by Sgt. Mankewich. She also requested that Sgt. Mankewich apologize




                                         30
for his gender based comments in writing. Her request was granted. She was

transferred to Sector 3 and Sgt. Mankewich apologized in writing.

      Sgt. Mankewich’s comments that Ms. Webb-Edwards “looked hot,” and that

she should wear tighter clothing, and women who dye their hair have issues at

home were taunting and boorish. They were not, however, physically threatening

or humiliating. Sgt. Mankewich never touched her or attempted to do so. For

conduct to be severe or pervasive, the work environment must be one that a

reasonable person would find hostile or abusive. Oncale v. Sandowner Offshore

Servs., Inc., 523 U.S. 75, 81 (1998).

      The Supreme Court has cautioned against expanding Title VII into “a

general civility code.” Id. at 81. The Court instructed in Oncale that

             The statute does not reach genuine but innocuous
             differences in the ways men and women routinely
             interact with members of the same sex and of the
             opposite sex. The prohibition of harassment on the basis
             of sex requires neither asexuality nor androgyny in the
             workplace, it forbids only behavior so objectively
             offensive as to alter the “conditions” of the victim’s
             employment.

Id.

      We are persuaded that a reasonable person would not consider Sgt.

Mankewich’s comments about Ms. Webb-Edwards’s figure and good looks

severely hostile or abusive. Ms. Webb-Edwards has failed to demonstrate that Sgt.


                                         31
Mankewich’s inappropriate comments about Ms. Webb-Edwards’s appearance

unreasonably interfered with her work performance or the terms and conditions of

her employment.

      Sgt. Mankewich’s taunting jest about eating Ms. Webb-Edwards for lunch is

more troubling. It was directed at her husband in Ms. Webb-Edward’s presence.

The record shows, however that she did not report it to Lt. McKinley on April 21,

2004, when she complained about Sgt. Mankewich’s unwelcome comments about

her appearance. Her husband made a report of the lunch comment on June 10,

2004. Furthermore, it is the only comment that could be construed as referring to

sexual activity involving Ms. Webb-Edwards. It was rather clearly a disgusting

attempt at humor, unaccompanied by any other improper conduct.

      The Supreme Court held in Faragher v. Boca Raton, 524 U.S. 775, 788

(1998), that “offhand comments and isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the terms and conditions of

employment.” In Gupta, this Court noted that:

            [a]ll the sexual hostile work environment cases decided
            by the Supreme Court has involved patterns or
            allegations of extensive, long lasting, unredressed and
            uninhibited sexual threats or conduct that permeated the
            plaintiff’s work environment.




                                        32
Gupta, 212 F.3d at 586 (quoting Indest v. Freeman Decorating, Inc., 164 F.3d 258,

264 (5th Cir. 1999)). In this matter, the record shows that Ms. Webb-Edwards’s

employer took immediate action to redress her grievances by granting her request

to be transferred to a different office and required Sgt. Mankewich to apologize for

his behavior.

      After looking at the totality of the circumstances independently, we agree

with the District Court that Ms. Webb-Edwards failed to demonstrate that Sgt.

Mankewich’s boorish remarks were severe or pervasive. They did not alter the

terms and conditions of her employment. The District Court did not err in granting

summary judgment on Ms. Webb-Edwards’s sexual harassment claim.

                                           B

      Ms. Webb-Edwards further contends the District Court erred in concluding

that she failed to demonstrate that she was not transferred to Gateway Middle

School in retaliation for the fact that she complained about Sgt. Mankewich’s

gender related comments. The District Court held that she failed to present

evidence that the failure to transfer her to a SRO position at Gateway Middle

School was causally related to the prior exercise of her statutorily protected rights

under Title VII to complain about workplace harassment. “[T]o establish a prima

facie case of retaliation under 42 U.S.C. § 2000(e) - 3(a), a plaintiff must show that



                                          33
(1) she engaged in statutorily protected expression; (2) she suffered an adverse

employment action; and (3) the adverse action was causally related to the protected

activity.” Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998).

      Ms. Webb-Edwards complained to Lt. McKinley on April 21, 2004, about

Sgt. Mankewich’s comments about her appearance and clothes. On October 25,

2004, Ms. Webb-Edwards was informed by an employee of the Human Resources

Division that the Piedmont Lakes SRO position had been filled but that the list was

still open for future transfers. Accordingly, approximately six months elapsed

between the date Ms. Webb-Edwards first complained about Sgt. Mankewich’s

unwelcome comments and the date she was noted that she was passed over for

transfer to Gateway Middle School.

      The record shows that Chief Hollomon deviated from the transfer board’s

ranking because he was concerned that female officers or small male officers

would be subject to violent physical assaults by the many disturbed students at

Gateway Middle School. Division Chief Hollomon was aware that Ms. Webb-

Edwards had complained about workplace harassment. No evidence was presented

by Ms. Webb-Edwards that Chief Hollomon’s testimony that his motivation for

deviating from the transfer board’s ranking of Ms. Webb-Edwards was false or

pretextual. Instead, she relies on the close temporal connection between the two



                                         34
events to demonstrate the element of causal connection. The Supreme Court noted

in Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), that:

            the cases that accept mere temporal proximity between an
            employer’s knowledge of protected activity and an
            adverse employment action as sufficient evidence of
            causality to establish a prima facie case uniformly hold
            that the temporal proximity must be “very close,” O’Neal
            v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A.10
            2001). See, e.g. Richmond v. ONEOK, Inc., 120 F.3d
            205, 209 (C.A.10 1997) (3-month period insufficient);
            Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 (C.A.7
            1992) *274 4-month period insufficient). Action taken
            (as here) 20 months later suggests by itself, no causality
            at all.

Id.

      Here, Division Chief Hollomon’s decision to pass over Ms. Webb-Edwards

in filling the position of SRO at Gateway Middle School came approximately six

months after she complained of a hostile work environment because of sexual

harassment. The District Court did not err in dismissing Ms. Webb-Edwards’s

retaliation claim. Ms. Webb-Edwards failed to meet her burden of presenting

evidence of a causal connection between her complaint about Sgt. Mankewich’s

inappropriate comments and to Chief Hollomon’s decision not to transfer her to

Gateway Middle School.




                                        35
                                         III

      Ms. Webb-Edwards also contends that the District Court erred in granting

Appellee’s motion to dismiss her gender discrimination and constructive discharge

claims pursuant to Rule 50(a) of the Federal Rules of Civil Procedure.

             Our review of a grant of a Rule 50(a) motion for
             judgment of a matter of law is de novo; we apply the
             same standard that the district court applied in addressing
             the motion. In doing so, we consider all the evidence in
             the light most favorable to the non-moving party, and
             independently determine whether the facts and inferences
             point so overwhelmingly in favor of the movant . . . that
             reasonable people could not arrive at a contrary verdict.

             The non-moving party must provide more than a mere
             scintilla of evidence to survive a motion for summary
             judgment as a matter of law. If the non-moving party
             failed to make a showing on an essential element of his
             case with respect to which he had the burden of proof,
             then the entry of judgment as a matter of law is
             appropriate.

Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1308

(11th Cir. 1998) (internal quotation marks and citation omitted).

                                          A

      Ms. Webb-Edwards maintained that the County waived the right to raise the

absence of the adverse employment action element of its prima facie case because

it failed to raise this issue in its oral Rule 50(a) motion after Ms. Webb-Edwards

had presented its case in chief. Ms. Webb-Edwards contends that the County did


                                         36
not assert that she had failed to demonstrate that she had suffered an adverse

employment action until it filed its written Rule 50(a) motion after the jury

returned its verdict. She argues that the failure of the County to include in its oral

motion the law and facts that entitled it to judgment as a matter of law violated the

mandatory provisions of Rule 50(a)(2). Rule 50(a)(2) provides that: “The motion

must specify the judgment sought and the law and facts that entitled the movant to

the judgment.”

       Ms. Webb-Edwards correctly argues that this specificity requirement is

necessary to protect the right of the non-moving party to correct deficiencies in the

evidence before the case is submitted to the jury. Ross v. Rhodes Furniture, Inc.,

146 F.3d 1286, 1289 (11th Cir. 1998). The County maintains that Ms. Webb-

Edwards forfeited her right to require it to specify the law and facts that it was

entitled to judgment as a matter of law by failing to object when the District Court

interrupted the County’s oral Rule 50(a) motion and ordered that it would not rule

on the gender discrimination claim until after the jury returned its verdict.3

               In general, the law ministers to the vigilant, not to those
               who sleep upon perceptible rights. Consequently, a
               litigant who deems himself aggrieved by what he
               considers to be an improper occurrence in the course of


       3
        In its written Rule 50(a) motion, the County asserted that the District Court should enter
judgment as a matter of law because Ms. Webb-Edwards failed to demonstrate that she suffered
an adverse employment action.

                                                37
             trial or an erroneous ruling by the trial judge ordinarily
             must object then and there, or forfeit any right to
             complain at a later time. The policy reasons behind the
             raise-or-waive rule are rock solid: calling a looming error
             to the trial court’s attention affords an opportunity to
             correct the problem before irreparable harm occurs.
             Then, too, the raise-or-waive rule prevents sandbagging;
             for instance, it precludes a party from making a tactical
             decision to refrain from objecting, and subsequently,
             should the case turn sour, assigning error (or, even worse,
             planting an error and nurturing the seed as insurance
             against an infelicitous result). So viewed, the
             requirement that parties raise contemporaneous
             objections to improper questions, comments, and the like
             serves an important purpose in promoting the balanced
             and orderly functioning of our adversarial system of
             justice.

Unites States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995) (internal quotation marks

omitted). This Court has recognized only two exceptions to this forfeiture rule:

“first, where a party has made its position clear to the court previously and further

objection would be futile; and second, where it is necessary to correct a

fundamental error or prevent a miscarriage of justice. Farley v. Nationwide Mut.

Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999) (internal quotation marks omitted).

      Ms. Webb-Edwards has not invoked the plain error rule to justify its failure

to object to the District Court’s failure to order the County to comply with the

requirements of Rule 50(a)(2). Instead, Ms. Webb-Edwards contends that the

evidence she presented in her case in chief was sufficient to demonstrate that



                                          38
passing over Ms. Webb-Edwards was an adverse employment action. We are

persuaded that Ms. Webb-Edwards has forfeited her right to challenge the

County’s contention on appeal that the evidence is insufficient to show that she

suffered an adverse employment action.

                                           B

      Ms. Webb-Edwards seeks reversal of the District Court’s order granting

judgment as a matter of law regarding her gender discrimination claim. To prove

the elements of a cause of action for gender discrimination, a plaintiff must

demonstrate four things: “(1) that she was a member of a protected class, (2) that

she was qualified for the job, (3) that she suffered an adverse employment action,

and (4) that she was displaced by someone outside the protected class.” Hinson v.

Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 828 (11th Cir. 2000).

      The Supreme Court has defined an adverse employment action as follows:

“A tangible employment action constitutes significant change in employment

status such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities or a decision causing a significant change in benefits.”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). This Court held in

Davis v. Town of Lake Park Fla., 245 F.3d 1232, 1238 (11th Cir. 2001), that “not




                                          39
all conduct by an employer negatively affecting an employee constitutes adverse

employment action.” This Court also held in Davis that:

               to prove adverse employment action in a case under Title
               VII’s anti-discrimination clause, an employee must show
               a serious and material change in the terms, conditions, or
               privileges of employment. Moreover, the employee’s
               subjective view of the significant 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. at 1239.

       Ms. Webb-Edwards contends that the District Court erred in concluding that

an assignment to the position at Gateway Middle School would have resulted in a

lateral transfer that “did not represent a serious and material change in the pay,

prestige, or responsibility of Plaintiff’s employment with Defendant.”

Order Granting Rule 50(a) Mot., May 4, 2007, at 10.4

       In Gupta, this Court held that “[w]hether an action is sufficient to constitute

an adverse employment action must be determined on a case by case basis.”

Gupta, 212 F.3d at 587. The record shows that Ms. Webb-Edwards successfully

applied for a transfer to the position of a SRO to fill a vacancy at any school.




       4
         In its order granting the County’s Rule 50(a) motion, the District Court concluded that
Ms. Webb-Edwards demonstrated direct evidence of gender discrimination. During oral
argument, counsel for the County conceded that the evidence of gender discrimination was
sufficient.

                                               40
      She testified she applied because it was her intention to become a SRO at

Sea Breeze High School when she entered the police academy in 1995.

Commander Chatman testified that a deputy can be transferred to any SRO

position that becomes available. If, however, a deputy who rejects a transfer to an

available school is taken off the eligibility list to avoid “shopping around.”

Commander Chatman testified that at schools other than Gateway Middle School, a

SRO’s duties include teaching “gang resistance” to the students. She also testified

that a SRO does not have time to teach. A SRO’s job duties at Gateway Middle

School are different from schools such as Conway Middle School because the SRO

is engaged full time in breaking up fights on school grounds. She also stated that a

majority of the students at Gateway Middle School have “criminal charges” and

psychological or behavioral problems, as well as being on medication.

Commander Chatman had previously recommended that two deputies be assigned

to Gateway Middle School “for safety reasons.”

      Chief Hollomon testified that he deviated from the eligibility ranking

submitted by the transfer review board because he believed that she was not

qualified to serve as a SRO at Gateway Middle School because of its “very unique

situation” when compared to other schools. He stated that she did not have the

“physical stature and tactical background and training” to handle fourteen to



                                          41
twenty-two year-old students with severe behavioral and medical problems as well

as criminal records for violent crimes. He testified that forty-three students had

been arrested on the Gateway Middle School campus for battery on a law

enforcement officer. In his opinion, Ms. Webb-Edwards would not have been safe

as the lone SRO at Gateway Middle School. He testified that his sole intention in

deviating from the transfer ranking was to “protect Elaine [Webb-Edwards].”

      This Court held in Impact v. Firestone, 893 F.2d 1189, 1194 (11th Cir.

1990), that a discrimination regarding which applicant is the best qualified for a

position can be based on a comparison of personal and “technical training”

characteristics. In passing over Ms. Webb-Edwards, Chief Hollomon relied on his

comparison of her small stature and her lack of SWAT experience with Deputy

Sheriff Leone’s larger physical size and his service on a SWAT team whose

primary duty is to capture armed or assaultive suspects.

      When Ms. Webb-Edwards was passed over from being transferred to

Gateway Middle School, she remained on the list for transfer to the next vacancy.

She was offered the position of SRO at Conway Middle School. Unlike the

dangerous conditions facing a SRO on a daily basis at Gateway Middle School, the

SRO at Conway Middle School has the opportunity to counsel, mentor, and teach,

as well as act as a coach in after-school activities. Chief Hollomon’s deviation



                                          42
from the transfer review board’s ranking of SRO candidates did not affect Ms.

Webb-Edwards’s eligibility to be transferred to a SRO position at a school other

than Gateway Middle School. In fact, she was offered a transfer to Conway

Middle School approximately fifteen days after she was notified that she would not

be transferred to Gateway Middle School. Thus, she refused to accept a transfer to

a school that would have provided her with a safe environment and the ability to

teach and coach an athletic team. Her refusal to accept a transfer to Conway

Middle School made her ineligible to accept a SRO position based on the current

eligibility ranking of applicants.

      The evidence regarding the physical danger faced by a SRO at Gateway

Middle School was not disputed by Ms. Webb-Edwards, nor was the fact that her

desire to teach and participate in school activities was not possible at that school.

There is no evidence in the record that a reasonable person faced with a choice of

remaining as a property detective with an occasional encounter with a perpetrator

resisting arrest would prefer being transferred to a position where she faced the

daily threat of being physically assaulted at a school populated by students as old

as twenty-two, the majority of whom had been placed at that school because of

their criminal activity and their disturbed medical condition.




                                           43
          The record in this case does not demonstrate that passing over Ms. Webb-

Edwards resulted in a serious and material change in the terms, conditions, and

privileges of employment. Her wages, benefits, or rank were not affected. More

importantly, a transfer to Gateway Middle School would have placed her in

constant danger of physical assault. She did not present any evidence that she

faced less of a threat of harm in her position as a property detective.

          Ms. Webb-Edwards’s reliance on Alvarado v. Texas Rangers, 492 F.3d 605

(5th Cir. 2007), is misplaced. In Alvarado, the Fifth Circuit reversed the district

court’s grant of summary judgment because it concluded there was sufficient

evidence that the position of Texas Rangers was a promotion because it was more

prestigious than that of being a sergeant in the Special Crimes Service Division of

the Department of Public Safety. Id. at 614-15. Here, no evidence was presented

that service as a SRO at a school such as Gateway Middle School where the total

responsibility of a SRO is to spend each day breaking up fights and attempting to

avoid violent assaults, is more prestigious than serving as a property detective who

may be required on an occasional basis to capture a suspect who attempts to escape

arrest.

          Accordingly, we conclude that Ms. Webb-Edwards has failed to demonstrate

that Chief Hollomon’s deviation from the transfer review board’s rank was an



                                           44
adverse employment action. The District Court did not err in granting the

County’s Rule 50(a) motion to dismiss Ms. Webb-Edward’s gender discrimination

claim.

                                           IV

         The County has cross-appealed from the District Court’s alternative order of

awarding Ms. Webb-Edwards $50,000 in the event that this Court should disagree

with the entry of a Rule 50(a) judgment as a matter of law regarding her gender

discrimination claim. Because we have determined that the District Court did not

err in granting the County’s Rule 50(a) motion, we dismiss the County’s cross-

appeal as moot.

                                      Conclusion

         The summary judgment granted in favor of the County on Ms. Webb-

Edwards’s sexual harassment and retaliation claims is AFFIRMED. The order

granting judgment as a matter of law on her gender discrimination claim is also

AFFIRMED. The County’s provisional cross-appeal is DISMISSED as moot.




                                           45