Gina Lynn Waters v. Home Depot U.S.A., Inc. ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 05-10211 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar December 19, 2005
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-02172-CV-RWS-1
GINA LYNN WATERS,
Plaintiff-Appellant,
versus
HOME DEPOT U.S.A., INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 19, 2005)
Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Gina Lynn Waters appeals the district court’s dismissal
of her complaint alleging that her former employer, Home Depot U.S.A., Inc.
(“Home Depot”), retaliated against her, in violation of Title VII, 42 U.S.C.
§ 2000e-3. No reversible error has been shown; we affirm.
Plaintiff’s complaint stated that Home Depot terminated her employment in
April 2002; Plaintiff then filed an EEOC claim against Home Depot alleging
discrimination.1 After the termination of Plaintiff’s employment, she purchased an
interest in Buzy Bee, a company operated by her associate, Karen Warner. Before
Plaintiff purchased her interest, Buzy Bee had a cleaning services contract with
Home Depot. On 13 February 2004, Home Depot terminated the Buzy Bee
contract. Plaintiff alleged that Home Depot, to retaliate against her for her
pending discrimination complaint, terminated the contract when it discovered her
interest in Buzy Bee. The district court dismissed Plaintiff’s complaint for failure
to state a claim because Home Depot had committed no act that negatively
impacted on Plaintiff’s employment.
Plaintiff argues on appeal that Home Depot’s termination of the Buzy Bee
contract is an adverse employment act under Title VII. She maintains that she and
her company were hired to perform cleaning services for Home Depot, that these
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Plaintiff later filed an employment discrimination action in district court against Home Depot.
The appeal in that case is addressed in Waters v. Home Depot U.S.A., Inc., 05-10212.
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services constituted employment, and that Home Depot terminated this
employment when it cancelled the contract.
We review de novo a district court’s order granting a defendant’s
Fed.R.Civ.P. 12(b)(6) motion to dismiss. Kirwin v. Price Commc’ns Corp., 391
F.3d 1323, 1325 (11th Cir. 2004). In doing so, we accept as true the fact
allegations in a plaintiff’s complaint. Id.Title VII prohibits retaliation against employees--including former
employees--when the employee has filed a charge of discrimination against the
employer. See 42 U.S.C. § 2000e-3(a); Robinson v. Shell Oil Co., 117 S.Ct. 843,
849 (1997). But to be actionable under Title VII’s anti-retaliation provision, the
former employee must show that she suffered an adverse employment act. See
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir. 1998)
(affirming district court’s dismissal of Title VII retaliation claim and setting out
elements of retaliation claim). To constitute an adverse act, an employer’s post-
termination activities must work a serious and material change in the former
employee’s terms and conditions of employment. See Davis v. Town of Lake
Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001); Nelson v. Upsala Coll., 51
F.3d 383, 387-89 (3d Cir. 1995) (rejecting a former employee’s retaliation claim
because employer’s act had no impact on former employee’s actual or proposed
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employment). And the asserted impact cannot be speculative: it “must at least
have a tangible adverse effect on the plaintiff’s employment.” Davis, 245 F.3d
at 1239.
Here, even accepting all of the allegations in Plaintiff’s complaint as true,
we do not see how Home Depot’s post-termination acts had a tangible adverse
effect on her employment. Plaintiff claimed only that Home Depot retaliated
against her by terminating the contract with Buzy Bee, a company in which she
owns an interest. This act may have had an adverse effect on Plaintiff’s business
investment interests. But Plaintiff cannot show that the termination of the Buzy
Bee contract worked a serious and material change in the terms and conditions of
her current or prospective employment.
Plaintiff further asserts that, under Swierkiewicz v. Sorema N.A., 122
S.Ct. 992 (2002), she did not need to state every fact to plead an adequate Title
VII retaliation claim. The Supreme Court has stated that an employment
discrimination complaint need not include facts establishing a prima facie case of
discrimination under Title VII; instead, the complaint must contain only “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
Swierkiewicz, 122 S.Ct. at 995. But the Supreme Court also wrote that a court
may grant a motion to dismiss “if it is clear that no relief could be granted under
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any set of facts that could be proved consistent with the allegations.” Id. at 998(citation and quotation marks omitted). Plaintiff has failed to show that Home
Depot’s acts resulted in a tangible adverse effect on her employment: we conclude
that no relief could be granted under any set of facts that could be proved
consistent with Plaintiff’s allegations of retaliation. The district court committed
no error in dismissing Plaintiff’s retaliation complaint.
AFFIRMED.
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