Lisa Anduze v. Florida Atlantic University ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 29, 2005
No. 04-16198
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-80895-CV-KAM
LISA ANDUZE,
Plaintiff-Appellant,
versus
FLORIDA ATLANTIC UNIVERSITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 29, 2005)
Before BLACK, PRYOR and HILL, Circuit Judges.
PER CURIAM:
Lisa Anduze, a black female, appeals the district court’s grant of defendant
Florida Atlantic University’s (“FAU”) motion for summary judgment as to her
complaint alleging, among other things, retaliation pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3. Specifically, Anduze,
who was an Admissions/Registration Coordinator in FAU’s Honors College at the
time, alleged that her direct supervisor Kerry Rosen, the Assistant Director for
Admissions at the Honors College, and Dr. William Mech, the Dean of the Honors
College, retaliated against her for filing a complaint with the FAU Equal
Opportunity Office regarding alleged racially discriminatory treatment by failing to
reappoint her to her current position, transferring her to a position at a different
campus, and changing her conditions of employment. First, Anduze argues on
appeal that the district court erred in concluding that her internal complaints of
racial discrimination and harassment did not satisfy the Participation Clause of
Title VII. Anduze alleges that she filed an Equal Employment Opportunity
Commission (“EEOC”) charge two weeks before the ultimate adverse employment
action occurred. Anduze contends that the district court erred in its analysis of her
retaliation claim under the Participation Clause because it failed to determine
whether FAU was aware of her subjective intention to contact the EEOC. Next,
Anduze argues that the district court erred in not analyzing her retaliation claim
under the Opposition Clause of Title VII because her internal complaints were
made in good faith. Anduze contends that the district court erred in failing to
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assess whether a person in her position could reasonably view FAU’s actions as
retaliatory.
I.
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.
56©)). The evidence, and all inferences drawn from the facts, must be viewed in
the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538(1986). In order to defeat summary judgment, however, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Id., 475 U.S. at 586, 106 S.Ct. at 1356. The non-moving party
must make a sufficient showing on each essential element of the case for which she
has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.
Title VII makes it unlawful for an employer to “discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
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employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). To
establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) she engaged in statutorily protected expression, (2) she suffered an adverse
employment action, and (3) there was some causal relation between the two events.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Once a
plaintiff has established a prima facie case, the employer then has an opportunity to
articulate a legitimate, non-retaliatory reason for the challenged employment
action. Id. at 1266. If that burden is met, the plaintiff then bears the ultimate
burden of proving, by a preponderance of the evidence, that the reason provided by
the employer is a pretext for prohibited, retaliatory conduct. Id.Under the Participation Clause of Title VII’s anti-retaliation provision, an
employee is protected from discrimination if she “has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” See 42 U.S.C. § 2000e-3(a). The Participation Clause
“protects proceedings and activities which occur in conjunction with or after the
filing of a formal charge with the EEOC; it does not include participating in an
employer's internal, in-house investigation, conducted apart from a formal charge
with the EEOC.” E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1174
(11th Cir. 2000). “[A]t a minimum, some employee must file a charge with the
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EEOC (or its designated representative) or otherwise instigate proceedings under
the statute for the conduct to come under the [P]articipation [C]lause.” Id. at 1174
n.2. Activities invoking the jurisdiction of the federal government through the
EEOC are entitled to expansive protection. See id. at 1175-76.
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error.
The district court did not err in concluding that Anduze did not establish a
prima facie case of retaliation under the Participation Clause. Contrary to
Anduze’s allegations in her brief on appeal, the copy of the EEOC charge attached
to her complaint shows that the charge was filed on June 17, 2002. Evidence
showed that FAU considered Anduze to have abandoned her job on May 10, 2002.
Thus, Anduze could not, as a matter of law, have engaged in protected activity
under the Participation Clause at the time she was considered to have abandoned
her position, because she had not yet filed a charge with the EEOC. See Total
System Services, Inc., 221 F.3d at 1174. Furthermore, Anduze could not satisfy
the third prong of a prima facie retaliation case – showing a causal relation
between the protected activity and adverse employment activity – for these same
reasons.
The district court also did not err in failing to determine whether FAU was
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aware that Anduze intended to contact the EEOC at the time Anduze was deemed
to have abandoned her position. First, because Anduze did not raise this argument
before the district court, and did not do so in her original brief on appeal, it is
waived. See Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994) (issues not
argued at the district court are generally not considered on appeal); Hall v. Coram
Healthcare Corp., 157 F.3d 1286, 1290 (11th Cir. 1998) (“Arguments raised for the
first time in a reply brief are not properly before this [C]ourt”). Assuming
arguendo this argument is preserved, however, it still fails on the merits because
Anduze does not point to any evidence in the record – and independent
examination does not reveal any evidence – suggesting that anyone at FAU was
aware of her intention to contact the EEOC when she was deemed to have
abandoned her job.
II.
Under the Opposition Clause of Title VII’s anti-retaliation provision, an
employee is protected from discrimination if she “has opposed any practice made
an unlawful employment practice by this subchapter.” See 42 U.S.C. § 2000e-3(a).
A plaintiff can establish a prima facie case of retaliation under the Opposition
Clause if she shows that she had a “good faith, reasonable belief that the employer
was engaged in unlawful employment practices.” Little v. United Technologies,
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Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). In order to satisfy this
standard:
A plaintiff must not only show that [she] subjectively (that is, in good
faith) believed that [her] employer was engaged in unlawful
employment practices, but also that [her] belief was objectively
reasonable in light of the facts and record presented. It thus is not
enough for a plaintiff to allege that [her] belief in this regard was
honest and bona fide; the allegations and record must also indicate
that the belief, though perhaps mistaken, was objectively reasonable.
Id. “The objective reasonableness of an employee's belief that her employer has
engaged in an unlawful employment practice must be measured against existing
substantive law.” Clover v. Total System Services, Inc., 176 F.3d 1346, 1351 (11th
Cir. 1999). Opposition Clause acts are viewed in the context of the ordinary
business environment, and, thus, are given less protection than Participation Clause
acts. Total System Services, Inc., 221 F.3d at 1176.
In order to state a prima facie case of racial discrimination under Title VII, a
plaintiff must establish, among other things, that an adverse employment action
occurred. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 1824, 36 L.Ed.2d 668 (1973). “While not everything that makes an
employee unhappy is an actionable adverse action, conduct that alters an
employee's compensation, terms, conditions, or privileges of employment does
constitute adverse action under Title VII.” Shannon v. Bellsouth
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Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir. 2002).
In order to state a claim of hostile work environment under Title VII, a
plaintiff must establish 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 Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370,
126 L.Ed.2d 295 (1993) (quotations omitted). Thus, a plaintiff wishing to establish
a hostile work environment claim must show that (1) she belongs to a protected
group; (2) she has been subjected to unwelcome harassment; (3) the harassment
was based on a protected characteristic of the employee; (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 either a theory of vicarious or direct
liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir.2002).
Upon consideration of the record and upon consideration of the parties’
briefs, we find no reversible error.
Assuming arguendo that Anduze preserved her argument under the
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Opposition Clause,1 a de novo review of the record demonstrates that no genuine
issue of material fact existed as to whether Anduze could establish a prima facie
case under the Opposition Clause, because Anduze did not have an objectively
reasonable belief that FAU was engaged in unlawful racial discrimination or
harassment. With regard to her allegations of racial discrimination, Anduze’s two
internal grievances preceded her transfer to the Boca Raton campus. The record
reveals no evidence that she had suffered any change in her compensation, terms,
conditions or privileges of employment at the time of her internal grievances that
would constitute an adverse employment action. Thus, Anduze did not have an
objectively reasonable belief that she had suffered racial discrimination under Title
VII at the time of her two internal grievances.
Next, assuming Anduze could satisfy prongs one and two of a hostile work
environment claim, Anduze proffered no evidence demonstrating that the
harassment she experienced was based on race. Anduze failed to cite to any
statements or incidents in which anyone employed by FAU referenced her race.
Anduze claimed that Rosen’s statement that she should “get her behind back to
work” was racially derogatory, but no one in Anduze’s position could reasonably
view this statement as a reference to race. Furthermore, the affidavits of Tamika
1
We note that Anduze did not expressly refer to the Opposition Clause in her pleadings
or opposition to FAU’s summary judgment motion.
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Baugh and Amber Knox, two African-American former students in FAU’s Honor
College who alleged that Rosen treated them differently based on their race by
attempting to cancel events for black student organizations and sending out
demeaning emails about them, submitted by Anduze, describe events not
experienced or known by Anduze, and are, thus, not relevant to her claim under the
Opposition Clause. See Clover, 176 F.3d at 1352 (“For [O]pposition [C]lause
purposes, the relevant conduct does not include conduct that actually occurred . . .
but was unknown to the person claiming protection under the clause”). When
measuring Anduze’s belief that she was harassed based on her race against existing
substantial law, and viewing the same in the context of the ordinary business
environment, Little, 103 F.3d at 960, Anduze’s belief was objectively
unreasonable. Clover, 176 F.3d at 1351. Therefore, Anduze cannot show that she
was engaged in protected activity for purposes of establishing a prima facie claim
of retaliation.
AFFIRMED.
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