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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13405
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-01016-DAB
CLAUDE MCQUEEN,
Plaintiff-Appellant,
versus
ALABAMA DEPARTMENT OF TRANSPORTATION,
STATE OF ALABAMA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(April 23, 2019)
Before BRANCH, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
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Claude McQueen (“Mr. McQueen”), an African-American male proceeding
pro se on appeal, appeals a magistrate judge’s grant of summary judgment to the
Alabama Department of Transportation (“ALDOT”); the State of Alabama (“the
State”); and three department employees—Sharon Ellis, Jason Boothe, and Mike
Griffin (collectively “Individual Defendants”) as to his retaliation and race
discrimination complaints brought pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”),
42 U.S.C. § 1981, and the Equal Protection Clause. For the
reasons set forth herein, we affirm the judgment of the magistrate judge. 1
I.
We assume the parties are familiar with the background of this case. Thus,
we summarize the proceedings and facts only insofar as necessary to provide
context for our decision. Mr. McQueen, who was represented by counsel in the
proceedings below, asserted race discrimination claims based on unequal pay, 2 a
hostile work environment claim, and a retaliation claim against ALDOT and the
1
The parties consented to the magistrate judge handling dispositive motions pursuant to
28
U.S.C. § 636(c).
2
The magistrate judge construed Mr. McQueen’s complaint as potentially also raising an
unequal pay claim under the Equal Pay Act. Because Mr. McQueen does not make any
arguments on appeal regarding sex discrimination, this argument is deemed abandoned. See
Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). Alternatively, because Mr. McQueen
did not demonstrate below that ALDOT or the State “pays different wages to employees of
opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions[,]” he has failed to
establish a prima facie case under the Equal Pay Act in any event. See Meeks v. Computer
Assocs. Int’l,
15 F.3d 1013, 1018 (11th Cir. 1994) (citations and internal quotation marks
omitted).
2
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State. Mr. McQueen also asserted a claim under
42 U.S.C. § 1983 against the
Individual Defendants, alleging that they allowed the creation of a racially hostile
work environment and retaliated against him in violation of
42 U.S.C. § 1981 and
the Equal Protection Clause of the Fourteenth Amendment.
II.
We review a district court’s order granting summary judgment de novo,
viewing all the evidence, and drawing all reasonable inferences, in favor of the
non-moving party. Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 767 (11th
Cir. 2005). Summary judgment is appropriate when the record demonstrates that
there is no genuine dispute as to any material fact, and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). There must be sufficient
evidence on which the jury could reasonably find for the plaintiff, and the
existence of a scintilla of evidence in support of the plaintiff’s position is
insufficient. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252,
106 S. Ct. 2505,
2512 (1986). We may affirm the judgment of the district court on any ground
supported by the record, regardless of whether that ground was relied upon or even
considered by the district court. Kernel Records Oy v. Mosley,
694 F.3d 1294,
1309 (11th Cir. 2012).
3
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III.
A. Abandonment of Claims of Error
Issues must be raised plainly and prominently on appeal. See Sapuppo v.
Allstate Floridian Ins. Co.,
739 F.3d 678, 680–81 (11th Cir. 2014). It is
insufficient for a party to make only passing references to a claim without
supporting argument or citation to authority.
Id. at 681–82. Further, an appellant
should clearly identify any issues that he wishes for us to address on appeal, and
his statement of the issues on appeal should reference the grounds for the district
court’s rulings. See
id. at 680–81. Although pro se briefs are liberally construed,
these rules of abandonment apply equally to pro se litigants. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
Mr. McQueen’s brief generically argues that the magistrate judge erred by
not affording him “the grace of the law that is afforded every non-moving party.”
Because Mr. McQueen has not challenged on appeal any of the multiple,
independent reasons the magistrate judge provided for summary judgment as to all
five defendants, he has abandoned any claims of error. Timson,
518 F.3d at 874.
This basis alone supports affirming the magistrate judge’s judgment. For the
reasons set forth below, the judgment should be affirmed in any event.
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B. Race Discrimination Claims
Title VII makes it unlawful for an employer to discriminate against an
employee on the basis of race. 42 U.S.C. § 2000e-2(a). Discrimination can be
proven through direct or circumstantial evidence. Hinson v. Clinch Cty. Bd. of
Educ.,
231 F.3d 821, 827 (11th Cir. 2000). Section 1983 of Title 42 makes liable
any person acting under color of state law to an injured party for depriving the
injured party of their rights under the Constitution.
42 U.S.C. § 1983.
Discrimination claims brought under § 1983 based on § 1981 and the Equal
Protection Clause are subject to the same standards of proof and use the same
analytical framework as intentional discrimination claims brought under Title VII.
Bryant v. Jones,
575 F.3d 1281, 1296 n.20 (11th Cir. 2009).
Where the claimant relies on circumstantial evidence, we generally apply the
burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411
U.S. 792,
93 S. Ct. 1817 (1973). Trask v. Sec’y, Dep’t of Veterans Affairs,
822
F.3d 1179, 1191 (11th Cir. 2016). If the plaintiff makes out a prima facie case, the
burden shifts to the employer to articulate a legitimate, non-discriminatory reason
for its action. McDonnell Douglas Corp.,
411 U.S. at 802,
93 S. Ct. at 1824. The
burden then shifts back to the plaintiff to show that the stated reason is pretext.
Springer v. Convergys Customer Mgmt. Grp. Inc.,
509 F.3d 1344, 1349 (11th Cir.
2007). Outside of the burden-shifting framework, a plaintiff may still survive
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summary judgment by presenting “a convincing mosaic” of circumstantial
evidence that “raises a reasonable inference that the employer discriminated
against” him. Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir.
2011).
Generally, to state a prima facie claim of racial discrimination, a plaintiff
must allege that: (1) he is a member of a protected class; (2) he was subjected to an
adverse employment action; (3) the employer treated similarly situated employees
who were not members of the plaintiff’s class more favorably; and (4) the plaintiff
was qualified for the job or benefit at issue. Rice-Lamar v. City of Fort
Lauderdale,
232 F.3d 836, 842–43 (11th Cir. 2000). For the reasons set forth
below, the magistrate judge did not err in granting of summary judgment to
ALDOT and the State as to Mr. McQueen’s race discrimination claims because he
failed to establish a prima facie case for both his unequal pay and hostile work
environment claims.
1. Unequal Pay Claim
When a complained-of adverse employment action is not an “ultimate
employment decision,” such as a termination, failure to hire, or demotion, the
conduct at issue must substantially alter “the employee’s compensation, terms,
conditions, or privileges or employment, [or] deprive him or her of employment
opportunities.” Crawford v. Carroll,
529 F.3d 961, 970–73 (11th Cir. 2008)
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(quotation marks omitted). Actions that affect compensation are considered
adverse employment actions. 42 U.S.C. § 2000e-2(a)(1). “[A]n evaluation that
directly disentitles an employee to a raise of any significance is an adverse
employment action under Title VII.” Gillis v. Ga. Dep’t of Corrs.,
400 F.3d 883,
887 (11th Cir. 2005). “When an employer applies its standard policies in a
nondiscriminatory manner, its action is not objectively adverse.” Cotton v.
Cracker Barrel Old Country Store, Inc.,
434 F.3d 1227, 1234 (11th Cir. 2006).
When comparing the plaintiff’s treatment to a non-protected employee, the
plaintiff and the employee he identifies as a comparator must be “similarly situated
in all material respects.” See Lewis v. City of Union City, No. 15-11362,
2019
WL 1285058, at *8 (11th Cir. Mar. 21, 2019) (en banc). This means that a
similarly situated comparator will have “engaged in the same basic conduct (or
misconduct) as the plaintiff, . . . will have been subject to the same employment
policy, guideline, or rule as the plaintiff, . . . will ordinarily (although not
invariably) have been under the jurisdiction of the same supervisor as the plaintiff,
and . . . will share the plaintiff’s employment or disciplinary history[.]”
Id. If a
plaintiff fails to show the existence of a similarly situated employee, summary
judgment is appropriate where no other evidence of discrimination is present.
Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997).
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In this case, Mr. McQueen alleged that he was denied step raises based on
his race. Mr. McQueen stated in his deposition that the other members of his crew
received step raises while he did not. All of the other crew members, however,
had received the certification that the step raise was conditioned upon, while Mr.
McQueen had not. Accordingly, Mr. McQueen has not pointed to a comparator
that is similarly situated in all material respects. See Lewis,
2019 WL 1285058, at
*8. Moreover, Mr. McQueen has failed to establish that he was entitled to such a
raise, as he received multiple performance evaluations indicating that he was either
not meeting performance standards or only partially meeting performance
standards.3 Accordingly, the magistrate judge did not err in granting summary
judgment to ALDOT and the State as to this claim.
2. Hostile Work Environment Claim
A hostile work environment claim under Title VII is established upon proof
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.” Harris v. Forklift Sys.,
Inc.,
510 U.S. 17, 21,
114 S. Ct. 367, 370 (1993) (quotation marks and citation
omitted). When the harassment claim is based on race, the employee must prove:
3
Mr. McQueen argued below that his poor appraisal scores were caused by preferential
treatment of other employees based on race but did not offer any support for these arguments.
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“(1) that he is a member of a protected class; (2) that he was subjected to
unwelcome racial harassment; (3) that the harassment was based on his race; (4)
that the harassment was severe or pervasive enough to alter the terms and
conditions of his employment and create a discriminatorily abusive working
environment; and (5) that the employer is responsible for the environment under a
theory of either vicarious or direct liability.” Adams v. Austal, U.S.A., L.L.C.,
754
F.3d 1240, 1248–49 (11th Cir. 2014). A plaintiff may establish a violation of Title
VII by showing either severe or pervasive harassment. Reeves v. C.H. Robinson
Worldwide, Inc.,
594 F.3d 798, 808 (11th Cir. 2010) (en banc). Instances of
harassment are considered cumulatively rather than in isolation.
Id. However, the
plaintiff must have been aware of the harassment. Adams, 754 F.3d at 1250.
In this case, Mr. McQueen alleged that ALDOT and the State allowed the
creation of a racially hostile work environment by refusing to discipline his
coworker, Josh Grisset, for racially based verbal harassment and physical violence.
He alleged that Grisset spoke to him, but not the other (white) crew members
disrespectfully4 and that once, when riding to a job site, Grissett berated and
physically assaulted him for no reason. Specifically, Mr. McQueen stated in his
4
Mr. McQueen contended below that Grisset criticized his work with comments like “that
ain’t done right,” “that ain’t the way that’s done,” and “you need to do that better” and generally
made him feel unwelcome. The magistrate judge correctly noted that Mr. McQueen failed to
establish that these comments were based on race.
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deposition that while he and Grisset were riding in a truck, he informed Grisset that
a hard hat had fallen off the truck, and Grisset responded by shoving him back in
his seat and stating “[s]it back Goddamn it. Sit back MF.” Grisset then told him
three times that he should not say anything else. Mr. McQueen has not shown that
Grisset’s mistreatment of him was based on race and it did not involve racially
derogatory words or gestures. See Adams, 754 F.3d at 1249. Even assuming that
racial animus could be inferred from Mr. McQueen being the only non-white
member of his work crew, this was only a single incident and Mr. McQueen and
Grisset continued to work together after this incident, demonstrating that it was not
severe enough to alter the terms and conditions of his employment. See id.
Mr. McQueen also submitted evidence before the magistrate judge that other
coworkers once referred to him using a derogatory racial slur and often disparaged
his intelligence.5 There is no evidence, however, that Mr. McQueen was aware of
these comments during the complained of time period, so we decline to consider it
in assessing the totality of Mr. McQueen’s workplace circumstances. See Adams,
754 F.3d at 1250 (“The totality of a plaintiff’s workplace circumstances does not
include other employees’ experiences of which the plaintiff is unaware. Courts
5
Specifically, Mr. McQueen submitted as evidence the declaration of a coworker, who
recalled that “[o]n one occasion, I overheard white female employees . . . discussing Mr.
McQueen and someone made the statement that he was a ‘dumb nigger.’ These white female
employees often made disparaging comments about Mr. McQueen’s intelligence.”
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conduct the objective assessment from the perspective of a reasonable person in
the plaintiff’s position, knowing what the plaintiff knew.”). Moreover, even
considering this evidence together with the above-discussed incident, this
mistreatment considered cumulatively was too sporadic and isolated to be
considered pervasive. See McCann v. Tillman,
526 F.3d 1370, 1379 (11th Cir.
2008); Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1276–77 (11th Cir.
2002). For these reasons, the magistrate judge did not err in granting summary
judgment to ALDOT and the State as to this claim. 6
C. Retaliation Claim
Title VII also prohibits discrimination against an employee if he opposed
any unlawful employment practice made illegal by Title VII or because he made a
charge of discrimination. 42 U.S.C. § 2000e-3(a). Absent direct evidence of
discrimination, we employ the McDonnell Douglas framework when analyzing
claims for retaliation. See Bryant v. Jones,
575 F.3d 1281, 1307 (11th Cir. 2009).
A plaintiff establishes a prima facie case of retaliation by showing that he:
(1) engaged in a statutorily protected activity; (2) suffered an adverse employment
action; and (3) established a causal link between the protected activity and the
adverse action.
Id. at 1307–08.
6
Because Mr. McQueen’s racial discrimination claims fail under Title VII, to the extent he
also raised the same claims under
28 U.S.C. § 1981 and the Equal Protection Clause they
likewise fail. See Bryant,
575 F.3d at 1296 n.20.
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An adverse employment action in the context of retaliation is one that
harmed the plaintiff and “might well have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White,
548 U.S. 53, 68,
126 S. Ct. 2405, 2415 (2006). For example, a poor
performance review that directly results in a denial of a bonus constitutes a
materially adverse action. Crawford,
529 F.3d at 971, 974. However, we have
held that neither an employee’s “fully successful” performance review (rather than
“exceptional”), nor his inability to attend certain committee meetings objectively
constituted materially adverse actions, where the record showed that he suffered no
more than mere frustration. Trask, 822 F.3d at 1195. Retaliation claims must be
proven under a but-for standard, requiring a showing that the plaintiff would not
have suffered the adverse employment action if he had not engaged in the
protected conduct. See Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 360–
61,
133 S. Ct. 2517, 2533–34 (2013). “At a minimum, a plaintiff must generally
establish that the employer was actually aware of the protected expression at the
time it took adverse employment action.” Clover v. Total Sys. Servs., Inc.,
176
F.3d 1346, 1354 (11th Cir. 1999) (quotation marks omitted). A close temporal
proximity between the alleged retaliatory acts and the protected activity is evidence
of pretext, but insufficient by itself to establish pretext. Hurlbert v. St. Mary’s
Health Care Sys. Inc.,
439 F.3d 1286, 1298 (11th Cir. 2006).
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In this case, Mr. McQueen alleged that after he filed an internal and EEOC
complaint about the above-discussed discrimination, he was “subjected to a
suspicious drug screen which upon information and belief was designed to chill his
willingness to engage in protected activity.” As the magistrate judge found, Mr.
McQueen’s drug test did not constitute an adverse employment action because he
passed the test and did not suffer any tangible harm as a result. See Crawford,
529
F.3d at 971–74.
Although not alleged in his complaint, Mr. McQueen stated in his deposition
that his supervisor, Boothe, threatened to reprimand him after he filed the EEOC
complaint. He also submitted the declaration of his supervisor, Barron, who stated
that after Mr. McQueen filed his EEOC complaint, Boothe questioned Barron
extensively about Mr. McQueen’s job performance and then gave him a low
performance rating. There is no evidence indicating that Booth knew about the
EEOC charges at the time of the rating, however. To the contrary, Booth stated in
a declaration that he was unaware of the EEOC complaint until Mr. McQueen filed
the present lawsuit. Because Mr. McQueen did not establish that his drug test was
an adverse employment action or that Boothe was aware of his protected activity at
the time in question, the magistrate judge did not err in granting summary
judgment to ALDOT and the State as to his retaliation claim. See Clover,
176 F.3d
at 1354.
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D. Claims Asserted Against Individual Defendants
Finally, because Mr. McQueen’s discrimination and retaliation claims fail,
his § 1983 claims asserted against the Individual Defendants based upon the same
underlying facts must also fail. See Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d
1227, 1235 (11th Cir. 2016) (“‘Title VII and [§] 1983 claims have the same
elements where the claims are based on the same set of facts,’ and in such cases,
the claims are subject to the same legal analysis.”).
For the reasons set forth herein, the judgment of the magistrate judge is
AFFIRMED.
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