Richard Cornell v. Megan J. Brennan ( 2019 )


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  •            Case: 18-12737   Date Filed: 06/13/2019   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-12737
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 8:16-cv-01099-VMC-TGW
    RICHARD CORNELL,
    Plaintiff-Appellant,
    versus
    MEGAN J. BRENNAN,
    POST MASTER GENERAL,
    UNITED STATES POSTAL SERVICES,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (June 13, 2019)
    Before MARCUS, WILSON and BLACK, Circuit Judges.
    PER CURIAM:
    Case: 18-12737        Date Filed: 06/13/2019        Page: 2 of 9
    Richard Cornell appeals the grant of summary judgment in favor of his
    former employer, the United States Postal Service (USPS), in his action for gender
    discrimination and gender-based hostile work environment under Title VII of the
    Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16. Cornell contends the
    district court erred in granting summary judgment in favor of the USPS on both his
    gender discrimination and gender-based hostile work environment claims
    revolving around the application of the USPS’s uniform policy. After review,1 we
    affirm.
    I. BACKGROUND
    Cornell’s allegations relevant to the appeal are as follows. From 2012 to
    2014, the USPS maintained strict rules and regulations regarding uniforms for both
    male and female employees. During this period, it required Cornell to wear his
    uniform at all times, and it threatened him with discipline if he were to fail to
    comply. During this same period, however, it allowed four female employees to
    not wear their uniforms at all times, and it did not discipline or warn them about
    their failure to comply with the rules. One of the female employees, Anh Tran,
    1
    We review de novo a district court’s grant of summary judgment, viewing all evidence
    and reasonable factual inferences drawn from it in the light most favorable to the nonmoving
    party. Crawford v. Carroll, 
    529 F.3d 961
    , 964 (11th Cir. 2008). “Summary judgment is
    appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show there is no genuine issue as to any material fact and that
    the moving party is entitled to judgment as a matter of law.” 
    Id. (citing Fed.
    R. Civ. P. 56(c)).
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    was similarly situated to Cornell. On several occasions he complained to
    supervisors about certain females violating the uniform policy, but they told him
    that he had to wear his uniform, and did nothing about the females. Cornell
    alleged this conduct resulted in him being discriminated against based on his
    gender and created a hostile work environment, both in violation of Title VII.
    II. DISCUSSION
    A. Discrimination
    We review discrimination cases involving circumstantial evidence under the
    framework established in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    (1973). Jefferson v. Sewon Am. Inc., 
    891 F.3d 911
    , 921-22 (11th Cir. 2018).
    Under this framework, the plaintiff is first required to establish a prima facie case
    of discrimination. Alvarez v. Royal Atl. Developers, Inc., 
    610 F.3d 1253
    , 1264
    (11th Cir. 2010). To establish a prima facie discrimination claim, the plaintiff
    must show, among other things, that he suffered an adverse employment action and
    that he was treated less favorably than a similarly-situated individual outside his
    protected class. Maynard v. Bd. of Regents of the Div. of Univs. of the Fla. Dep’t
    of Educ., 
    342 F.3d 1281
    , 1289 (11th Cir. 2003).
    The district court did not err in granting summary judgment on Cornell’s
    gender discrimination claim in favor of the USPS because Cornell failed to
    establish that he suffered an adverse employment action and that his identified
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    comparator was similarly situated in all material respects. First, Cornell never
    suffered from an adverse employment action. See Davis v. Town of Lake Park,
    Fla., 
    245 F.3d 1232
    , 1238-39 (11th Cir. 2001) (stating to prove an adverse
    employment action an employee has to show a serious and material change in the
    terms, conditions, or privileges of his employment, and not all conduct by an
    employer negatively affecting an employee constitutes adverse employment action
    in a discrimination context). Cornell testified in his deposition that he followed the
    rule that required him and other employees who were window qualified to wear
    their USPS uniform at all times and that he did not mind the rule. Because Cornell
    followed the rule, he was never disciplined for failing to follow the rule.
    Furthermore, Cornell’s argument that he lost prestige as a result of being
    required to wear a uniform, and thus, suffered an adverse employment action lacks
    merit because it involves only his subjective beliefs. See 
    id. at 1239
    (“[T]he
    employee’s subjective view of the significance and 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.”). Without more, such as a
    demotion, change in title, change in pay, change in work hours, or a transfer,
    Cornell’s perceived loss of prestige is insufficient to establish that he suffered an
    adverse employment action. See 
    id. at 1242
    (“[A]n employee who receives
    criticism or a negative evaluation may lose self-esteem and conceivably may suffer
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    a loss of prestige in the eyes of others who come to be aware of the evaluation.
    But the protections of Title VII simply do not extend to everything that makes an
    employee unhappy,” and thus, “will rarely—without more—establish the adverse
    action necessary to pursue a claim under Title VII’s anti-discrimination clause”
    (quotations omitted)); Doe v. Dekalb County School Dist., 
    145 F.3d 1441
    , 1452
    n.19 (11th Cir. 1998) (noting, in determining whether a defendant suffered from an
    adverse employment action in the American with Disabilities Act context, that
    “loss of prestige, either within an organization or with regard to the general public,
    is an objective factor that a court should consider as part of a reasonable person
    test”).
    Second, Cornell failed to show that he and Tran were similarly situated in all
    material respects. See Lewis v. City of Union City, 
    918 F.3d 1213
    , 1218 (11th Cir.
    2019) (en banc) (holding a comparator is an employee “similarly situated in all
    material respects”). To the contrary, they were not engaged in the same conduct
    because Cornell followed the rule that required him to wear his uniform at all
    times, while, viewing the facts most favorable to Cornell, Tran did not. See 
    id. at 1227
    (explaining a valid comparator ordinarily “will have engaged in the same
    basic conduct (or misconduct) as the plaintiff”). Thus, Cornell failed to put forth a
    prima facie case of discrimination, and the district court did not err in granting
    summary judgment.
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    B. Hostile Work Environment
    To establish a prima facie case of a hostile work environment, a plaintiff
    may 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;
    (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) the employer is responsible for such environment under a
    theory of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 
    277 F.3d 1269
    , 1275 (11th Cir. 2002).
    The requirement that the harassment be “severe or pervasive” contains an
    objective and a subjective component. 
    Id. at 1276.
    “Thus, to be actionable, this
    behavior must result in both an environment that a reasonable person would find
    hostile or abusive and an environment that the victim subjectively perceives . . . to
    be abusive.” 
    Id. (quotations omitted).
    Ultimately, Title VII is not a general civility
    code; “ordinary tribulations of the workplace, such as sporadic use of abusive
    language, gender-related jokes, and occasional teasing” cannot form the basis of a
    claim for actionable harassment or hostile work environment. Faragher v. City of
    Boca Raton, 
    524 U.S. 775
    , 788 (1998). Instead, “conduct must be extreme to
    amount to a change in the terms and conditions of employment.” 
    Id. 6 Case:
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    The district court did not err in granting summary judgment to the USPS on
    Cornell’s hostile work environment claim. While Cornell subjectively believed
    that he experienced a hostile work environment, the district court did not err in
    concluding that his work environment was not objectively hostile. This is because
    no evidence, other than Cornell’s own subjective beliefs, showed that: (1) his job
    performance suffered; (2) USPS employees, other than Cornell, were humiliated
    by being required to wear a uniform; or (3) Cornell was physically threatened.
    Although USPS officials may have threatened to discipline Cornell, the threatened
    discipline was for failing to purchase a uniform with USPS funds and failing to
    accept a uniform that was purchased with USPS funds. He was not disciplined for
    refusing to wear the uniform, which Cornell stated he had no problem doing.
    The conduct alleged by Cornell does not rise to the level of severe or
    pervasive conduct as discussed in our prior precedents. Compare Jones v. UPS
    Ground Freight, 
    683 F.3d 1283
    , 1302-04 (11th Cir. 2012) (concluding that seven
    incidents of racist acts over a year, some of which—e.g., two incidents involving
    the placement of banana peels on the plaintiff’s truck, co-workers wearing
    Confederate clothing, and a threatening confrontation with several co-workers—
    occurred within a two-week period near the end of the plaintiff’s employment,
    collectively raised a jury question as to whether he endured a hostile work
    environment); Reeves v. C.H. Robinson Worldwide, Inc., 
    594 F.3d 798
    , 811-14
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    (11th Cir. 2010) (coworkers’ frequent use of gender-specific derogatory comments,
    together with an incident where a coworker displayed a pornographic image of a
    woman on his computer, held to create a genuine issue of material fact regarding
    hostile work environment); Hulsey v. Pride Rests., LLC, 
    367 F.3d 1238
    , 1248 (11th
    Cir. 2004) (holding that supervisor’s propositioning of plaintiff for sex, following
    her into the restroom, and repeatedly attempting to touch her breasts, place his
    hands down her pants, and pull off her pants was enough evidence to create a
    genuine issue of material fact regarding severe or pervasive harassment); with
    McCann v. Tillman, 
    526 F.3d 1370
    , 1378-79 (11th Cir. 2008) (instances of racially
    derogatory language over a period of two-and-a-half years were “too sporadic and
    isolated” to qualify as severe or pervasive); Webb-Edwards v. Orange Cnty.
    Sheriff’s Ofc., 
    525 F.3d 1013
    , 1027-28 (11th Cir. 2008) (supervisor’s comments
    that female plaintiff “looked hot” and “should wear tighter clothing, and that
    women who dye their hair have issues at home, were taunting and boorish” but not
    hostile or abusive); Mendoza v. Borden, Inc., 
    195 F.3d 1238
    , 1247-49 (11th Cir.
    1999) (en banc) (supervisor that “constantly” followed the plaintiff and stared at
    her, twice made a “sniffing motion” in the plaintiff’s groin area, rubbed his hip
    against the plaintiff’s hip while touching her shoulder and smiling, and once told
    the plaintiff, “I’m getting fired up” had not engaged in severe or pervasive
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    conduct). Accordingly, the district court did not err in granting summary judgment
    on Cornell’s hostile work environment claim.
    AFFIRMED.
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