Adonis B. Whitby v. Secretary for the Department of Homeland Security , 480 F. App'x 960 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10861 JUNE 28, 2012
JOHN LEY
CLERK
D.C. Docket No. 5:08-cv-00242-HL
ADONIS B. WHITBY,
Plaintiff-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Georgia
(June 28, 2012)
Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and RESTANI,*
Judge.
*
Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
RESTANI, Judge:
In July 2008, Mr. Adonis Whitby (“Whitby”) filed a complaint against his
former employer, Janet Napolitano, Secretary of the U.S. Department of Homeland
Security (“the Government”), who is the head of Whitby’s former employing
agency, the Transportation Security Agency (“TSA”). Whitby alleged that during
his employment as a Supervisory Transportation Security Officer, the TSA
discriminated against him on multiple occasions on the basis of race, color, age,
and disability and retaliated against him for engaging in protected activity.
Whitby alleged violations of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1), the Whistleblower
Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8), the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112, and the Rehabilitation Act
of 1973, 29 U.S.C. § 791.
On appeal, Whitby argues that the district court erred in (1) dismissing his
Title VII claims as preempted by the Aviation and Transportation Security Act
(“ATSA”), 49 U.S.C. § 44935; (2) dismissing two of his Title VII claims for
failure to exhaust administrative remedies; (3) granting summary judgment on his
Title VII discrimination and retaliation claims, and; (4) granting summary
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judgment on his Title VII hostile work environment claim.1 We affirm the district
court but, as to some claims, on its alternate grounds.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291.
We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim, accepting all factual allegations in the complaint as true and
construing them in the light most favorable to the appellant. Am. Dental Ass’n v.
Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). We review de novo a district
court’s grant of summary judgment. Rojas v. Fla. Dep’t of Bus. & Prof’l
Regulations, 285 F.3d 1339, 1341 (11th Cir. 2002). A court shall grant summary
judgment when the evidence before it shows “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).
1
Whitby does not challenge on appeal the dismissal of his ADEA, ADA, WPA, or
Rehabilitation Act claims. Whitby also does not challenge the district court’s denial of his
motion to compel or the denial of his motion for sanctions and default judgment. These issues
are deemed abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (issues not
briefed on appeal are abandoned).
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DISCUSSION
I. ATSA Preemption
Whitby argues that the ATSA does not preempt his Title VII claims because
the ATSA does not permit the TSA to make employment decisions that
discriminate based on race, color, sex, or age. Whitby also argues that the TSA
should be bound by its voluntary commitment to comply with Title VII. On
appeal, the Government has made a litigation concession that the ATSA does not
preempt Whitby’s Title VII claims.
Thus, for purposes of this case, we assume, based on the Government’s
litigation concession, that the ATSA does not preempt Whitby’s Title VII claims,
and we do not address the district court’s dismissal of Whitby’s Title VII claims
on preemption grounds. Rather, we affirm the district court’s grant of summary
judgment for the Government on these same claims.
II. Failure to Exhaust Administrative Remedies
Whitby argues the court should excuse his failure to exhaust administrative
remedies with respect to the April 2005 letter of reprimand and the September
2005 denial of overtime pay because the purpose of the exhaustion requirement
has been served and the Government has not been prejudiced. Whitby agrees he
failed to exhaust his administrative remedies for these two incidents by timely
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contacting the Equal Employment Opportunity Commission (“EEOC”), but argues
a procedural technicality should not bar his claim when the government had notice
and investigated the claims.
In order to bring a Title VII claim, a plaintiff must exhaust his
administrative remedies. See 42 U.S.C. § 2000e-16(c); Shiver v. Chertoff, 549
F.3d 1342, 1344 (11th Cir. 2008) (“Generally, when the claimant does not initiate
contact within the 45-day charging period, the claim is barred for failure to
exhaust administrative remedies.”). An employee must initiate contact with an
EEOC Counselor within forty-five days of the discriminatory or personnel action.
29 C.F.R. § 1614.105(a)(1). The deadline may be extended if the employee was
not notified or otherwise aware of the deadline, did not know the personnel action
had occurred, or despite due diligence, was prevented from contacting the
counselor within the deadline. See id. § 1614.105(a)(2). Whitby did not make
such a request.
Whitby’s failure to exhaust administrative remedies is not excused.
Investigation of alleged discrimination does not prevent the Government from
later asserting a failure to exhaust administrative remedies defense. Obviously,
the opposite rule would discourage agencies from fully investigating claims of
discrimination. Thus, the district court did not err in dismissing Whitby’s Title
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VII claims based on the April 2005 letter and the September 2005 denial of
overtime pay.
III. Title VII Discrimination and Retaliation
Whitby argues that the district court erred by granting summary judgment
on his remaining Title VII discrimination and retaliation claims. Specifically,
Whitby argues that the Government discriminated and retaliated against him based
on the following: (1) the November 2005 issuance of a letter of guidance for not
reading e-mails; (2) the November 2005 rescission of an approved overtime
request; (3) the October 2006 failure to appoint to the Bomb Appraisal Officer
position; (4) the March 2007 issuance of a letter of counseling for not reading e-
mails, and; (5) the 2007 removal of Whitby from his supervisory position and his
ultimate termination.2 Whitby’s claims lack merit.
Title VII discrimination and retaliation claims based on circumstantial
evidence are analyzed under the burden-shifting framework of McDonnell
2
Whitby’s Title VII claims originally included additional instances of alleged retaliation
and discrimination: (1) the October 2005 proposed schedule change; (2) the September 2006
refusal to pay Whitby for time spent bidding on shifts, and; (3) the October 2006 delayed
reimbursement for attending a work-related class. Whitby has not briefed these claims on appeal
and, therefore, they are deemed abandoned. See Timson, 518 F.3d at 874.
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Douglas Corp. v. Green. 411 U.S. 792, 802–03 (1973).3 If a plaintiff successfully
makes a prima facie case of discrimination or retaliation, the burden shifts to the
employer to provide a legitimate, non-discriminatory, or non-retaliatory reason for
the adverse employment action. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1264 (11th Cir. 2010). The plaintiff then bears the ultimate burden to
produce evidence showing that the employer’s reasons for the adverse action are a
pretext for discrimination or retaliation. Id. Plaintiff can demonstrate pretext by
showing that the employer’s “proffered reason was not the true reason for the
employment decision.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981). Plaintiff can show this “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.” Id.Here, the Government has provided legitimate, non-discriminatory, and non-
retaliatory reasons for each of its actions and Whitby has failed to produce
sufficient evidence to raise a genuine issue of material fact as to whether the
3
The McDonnell Douglas framework applies in the same way to both discrimination and
retaliation claims based on circumstantial evidence. See, e.g., Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1263–64 (11th Cir. 2010) (applying McDonnell Douglas framework to a
discrimination claim); Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)
(applying McDonnell Douglas framework to a retaliation claim).
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proffered explanations are pretextual.4
On November 1, 2005, Security Manager Raymond Dotson (“Dotson”)
issued Whitby an informal letter of guidance after Whitby deleted more than
twenty work e-mails without opening them. Whitby admits that he did not open
the e-mails. The Government has a clear interest in having its employees open and
read work-related e-mails.5 Whitby has presented no evidence that Dotson knew
of other employees who did not open e-mails and therefore, cannot show that
Dotson treated similarly situated employees differently. Thus, Whitby has not
proffered evidence that the Government’s reasons for issuing the letter of guidance
are pretextual.
On November 29, 2005, Dotson rescinded approval of Whitby’s request for
overtime for working on his scheduled day off. Previously, Security Manager
Larry Lee had granted the request. The Government’s general practice is not to
grant overtime to supervisors who work on their scheduled day off unless there is
an operational need for overtime work. Whitby has failed to present evidence that
4
We assume, without deciding, that a genuine dispute exists as to whether Whitby can
establish a prima facie case for discrimination and retaliation and we proceed to determine
whether the Government’s proffered reasons for its actions are pretextual.
5
Whitby explained that he was able to read e-mails without opening them by viewing the
emails on a “split screen.” Nevertheless, Whitby provides no evidence that Dotson was aware of
this practice.
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there was an operational need for overtime work on November 29. Although
Whitby alleges that other supervisors were allowed to work overtime on days
without an operational need for overtime work, he fails to provide evidence that
there was in fact no operational need on those days. Thus, Whitby has failed to
proffer evidence that the Government’s reasons for denying him overtime are
pretextual.
In October 2006, Whitby was not promoted to a Bomb Appraisal Officer
position. Whitby obtained a failing score in each section of the structured
interview assessment. Whitby argues that the interviews were not mandatory and
therefore cannot justify the Government’s action. Nevertheless, Whitby provides
no evidence that his failing scores were contrived in an effort to deny him the
position or that other candidates did not have to go through the same interview
process. Thus, Whitby has failed to show that the Government’s reason is
pretextual.
On March 13, 2007, Security Manager Michael Mann issued Whitby a letter
of counseling for failure to read e-mails. Many e-mails were not received because
Whitby allowed his mailbox to become full. The Government has a clear interest
in having its employees receive and read work-related e-mails. Whitby admits that
he allowed his mailbox to become full. Thus, Whitby has failed to show that the
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Government’s reason for issuing the letter is pretextual.
On March 29, 2007, Whitby was removed from his supervisory duties and
in December 2007 his employment was terminated. Earlier, Whitby had given all
of his screening officers the highest rating possible on their performance
evaluations. When pressed to reconsider these uniformly high evaluations,
Whitby refused. Moreover, Whitby refused to reprimand a tardy subordinate
when directed to do so by his superiors. The Government investigated this
behavior, during which time Whitby’s supervisory duties were removed. In
October 2007, the Government issued a proposed notice of termination based on
Whitby’s failure to change the evaluations, his refusal to reprimand the tardy
screening officer, and his failure to read e-mails in a timely manner. Whitby’s
position was terminated in December 2007 for these reasons. Whitby has not
proffered evidence that the Government’s reasons for his removal and termination
are pretextual.
The Government has offered legitimate, nondiscriminatory, and non-
retaliatory reasons for each of its employment decisions. Whitby has not
demonstrated that a discriminatory reason motivated the Government nor that its
reasons are “unworthy of credence.” See Burdine, 450 U.S. at 256. We therefore
affirm the district court’s grant of summary judgment on Whitby’s Title VII
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discrimination and retaliation claims.
IV. Title VII Hostile Work Environment
Whitby argues that the district court erred in granting summary judgment to
the Government on Whitby’s hostile work environment claim because his
supervisors directed racist and ageist comments towards him over a span of two
years. This claim lacks merit because Whitby’s allegations do not amount to
harassment that was severe or pervasive enough to alter the terms and conditions
of employment and create an abusive work environment.
In order to establish a prima facie case for a hostile work environment
claim under Title VII, an employee must show: (1) the employee belongs to a
protected group; (2) the employee was subject to unwelcome harassment; (3) the
harassment was based on a protected characteristic of the employee; (4) the
harassment was severe or pervasive enough to alter the terms and conditions of
employment and create a discriminatorily abusive work environment, and; (5)
there is a basis for holding the employer liable. Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); see also 42 U.S.C. § 2000e-2(a)(1).
At a minimum, Whitby has failed to establish the fourth element, that the
harassment was severe or pervasive enough to alter the terms and conditions of his
employment and create a discriminatorily abusive work environment. To alter the
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terms of employment, the discrimination must be both objectively and subjectively
hostile. Harris v. Forklift Syss. Inc., 510 U.S. 17, 21–22 (1993). To determine
whether a work environment is objectively hostile, the court looks to the totality of
the circumstances, including the severity and pervasiveness of the acts, use of
physical threats, and whether the discriminatory acts unreasonably interfered with
the employee’s ability to perform his job. See id. at 23. Isolated incidents that are
not extremely serious are not sufficiently severe or pervasive. Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (citing Oncale v. Sundowner Offshore
Servs. Inc., 523 U.S. 75, 80 (1998)) (Title VII is not a “general civility code”).
Whitby argues that his supervisor and manager directed racial and age
insults towards him. Whitby alleges that his manager, Dotson, remarked that
Whitby’s gray hair should be dyed. Whitby also alleges that his supervisor, Bahli
Mullins (“Mullins”), referred to Whitby periodically over the course of two years
as “Frederick Douglass” and advised Whitby to cut his hair.
Dotson’s comment that Whitby should dye his hair was not sufficiently
severe and pervasive because it was an isolated incident. See Faragher, 524 U.S.
at 788 (explaining that an isolated comment, unless it is extremely severe, does not
constitute a discriminatory change in employment conditions). Whitby remembers
no other offensive comments made by Dotson. Mullins’ comments, when viewed
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objectively, were also not sufficiently severe to alter the terms of Whitby’s
employment. Additionally, none of the statements by Dotson or Mullins were
physically threatening.
Moreover, the remarks by Dotson and Mullins did not unreasonably affect
Whitby’s ability to do his job and therefore, are insufficient to affect the terms of
his employment. See Harris, 510 U.S. at 21–22. Whitby states that although the
statements made him not want to work with these supervisors, the statements did
not affect his job performance in any other way. Whitby continued to do his job
for several years after the comments were made, and ultimately he was terminated
for other reasons by other superiors.
Thus, the comments made by Dotson and Mullins do not reach the level of
severity or pervasiveness necessary to alter the terms and conditions of
employment. The district court’s grant of summary judgment on Whitby’s hostile
work environment claim is affirmed.
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CONCLUSION
For the foregoing reasons, the district court’s dismissal of the Title VII
claims based on the April 2005 letter of reprimand and September 2005 denial of
overtime for failure to exhaust administrative remedies is affirmed. The district
court’s grant of summary judgment for the Government on the Title VII
discrimination, retaliation, and hostile work environment claims is affirmed.
AFFIRMED.
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