Magda Pizzini v. Secretary for the Department of Homeland Security ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10214
Non-Argument Calendar
________________________
D.C. Docket No. 0:10-cv-61498-JAL
MAGDA PIZZINI,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF HOMELAND SECURITY,
PATRICIA WHITE,
DANIEL BABOR,
llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 8, 2012)
Before BARKETT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Magda Pizzini sued Janet Napolitano, in her capacity as Secretary for the
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United States Department of Homeland Security (DHS), alleging a hostile work
environment, retaliation, and race and national origin discrimination under Title
VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-2(a)(1),
2000e-3(a), 2000e-16. Pizzini is an Hispanic woman of Puerto Rican descent,
who has been employed since 2003 in the Miami field office of the Federal Air
Marshal Service, a component of DHS.1 The district court granted summary
judgment in favor of DHS on each of Pizzini’s claims. Proceeding pro se, Pizzini
argues here that the district court erred because DHS “failed to meet its burden on
summary judgment and genuine issues of material fact exist for the jury to decide
each claim.”
We review a district court order granting summary judgment de novo.
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Summary
judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). In assessing
whether a genuine issue of material fact exists, we “must view all the evidence and
1
The facts underlying Pizzini’s claims are more completely set out in the Report and
Recommendation of the Magistrate Judge. Pizzini v. Napolitano, No. 10-61498 (S.D. Fla. Nov.
1, 2011) (magistrate’s report and recommendation).
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all factual inferences reasonably drawn from the evidence in the light most
favorable to the nonmoving party, and must resolve all reasonable doubts about
the facts in favor of the non-movant.” Id. (quotation marks omitted). Stated
differently, “[a] genuine issue of material fact exists when a reasonable jury could
return a verdict for the nonmoving party.” Chapter 7 Trustee v. Gate Gourmet,
Inc., 683 F.3d 1249, 1254 (11th Cir. 2012) (quotation marks omitted).
I. HOSTILE WORK ENVIRONMENT
To establish a hostile work environment claim under Title VII, a plaintiff
must show that: (1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) that harassment was based on her membership in the
protected group; (4) the harassment was severe or pervasive enough to alter the
terms and conditions of employment and create a hostile or abusive working
environment; and (5) the employer is directly or vicariously liable for such
environment. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir.
2012). The district court granted summary judgment to DHS on Pizzini’s hostile
work environment complaint because it determined that she “ha[d] not met the
‘pervasive or severe’ element of her . . . claim.”
Pizzini takes exception to the district court’s determination, arguing that it
“ignores the totality of the circumstances and fails to examine the conduct in
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context.” In support, Pizzini alleges “unequal treatment when compared to . . .
non-Hispanic coworkers,” and “repeated racially derogatory comments [made] by
virtually all of [her] coworkers [and] ignored and exacerbated by supervisors.”
Finally, she draws our attention to the fact that she was involuntarily hospitalized
for two nights in August 2010, allegedly because of the “sever[ity]” and
“hostil[ity]” of her work environment.
Pizzini’s argument in this regard fails. First, neither of the two cognizable
instances of “unequal treatment” alleged by Pizzini can reasonably support her
hostile work environment claim.2 The first of these alleged instances—that a
supervisor demanded that she clean “trash” from government vehicles—is
contradicted by Pizzini’s own deposition testimony, taken as part of her initial
complaint to the Equal Employment Opportunity Commission (EEOC). In that
deposition, Pizzini stated that her supervisor requested that she recover receipts
2
On appeal, Pizzini also alleges that a supervisor “refused to assist [her] with her job
duties.” Pizzini has failed, however, to provide citations to the record regarding this allegation,
or even to provide any indication as to which “job duties” she is referring. While we read briefs
filed by pro se litigants liberally, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), we
have also warned that failure to include citations to the parts of the record on which an appellant
relies may result in waiver of those allegations for purposes of appeal. See Nat’l Alliance for the
Mentally Ill v. Bd. of Cnty. Comm’rs, 376 F.3d 1292, 1295–96 (11th Cir. 2004) (citing Fed. R.
App. P. 28(a)(9)(A)); cf. Doe v. Moore, 410 F.3d 1337, 1349 n.10 (11th Cir. 2005) (“On appeal,
we require appellants to not only state their contentions to us, but also to give ‘the reasons for
them, with citations to the authorities and parts of the record on which the appellant relies.’”)
(quoting Fed. R. App. P. 28(a)(9)(a)). Thus, to the extent that we are not able to determine which
incidents or job duties she is referring to here, this allegation is waived.
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and other papers from government vehicles because these documents were
necessary for Pizzini to properly perform her duties as DHS fleet custodian. In her
deposition, she also made clear that her supervisor never asked her to pick up
“trash.” Pizzini’s testimony is consistent with the supervisor’s
affidavit—submitted by Pizzini as part of her own motion for summary judgment.
The supervisor explained that he instructed Pizzini to check the vehicles for this
paperwork because it was “logical[]” and “efficien[t]” for her to do so, given her
“responsibil[ity] for maintaining vehicle records.” Considering the record as a
whole, this allegation does not reasonably support her claim.
Neither does Pizzini’s second alleged instance of unequal treatment
reasonably support her hostile work environment claim. She asserts that a
supervisor “refus[ed] to approve [her] leave requests until all non-Hispanic
program assistants had submitted their leave requests.” In support of this
allegation Pizzini has provided three emails, sent by her supervisor to multiple
employees in the Miami field office, in which the supervisor requests that all
holiday leave requests be submitted by certain dates so that office-wide holiday
leave calendars could be coordinated. However, nothing about these emails
suggests that Pizzini was singled out for “unequal treatment.” Indeed it appears
that each of her holiday leave requests were granted within fifteen days of
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submission, and no less than six weeks prior to the requested time off. Thus,
based on our de novo review of the record before us, this allegation also does not
reasonably support Pizzini’s claim.3
Neither are we persuaded that the “racially derogatory comments” alleged
by Pizzini are sufficient to satisfy the “severe or pervasive” prong of the hostile
work environment test. The first of these comments—that Hispanics “don’t
understand others when spoken to”—appears to be taken out of context. The
record does not reflect that DHS or its employees ever stated that Hispanics “don’t
understand others when spoken to.” Instead it indicates that one of Pizzini’s
supervisors told Pizzini that Pizzini “never understands people when they talk to
her.” Pizzini attributes this statement to racial animus but has provided no
3
Relying on Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279–80 (11th Cir.
2004), the district court determined that Pizzini’s allegation regarding leave requests was beyond
the scope of its review because Pizzini failed to raise it in her complaint to the EEOC. This
reliance was misplaced. In Gregory, we held that the district court properly allowed a retaliation
claim to proceed, even where the complainant failed to allege retaliation in her initial complaint
to the EEOC, because “[t]he facts alleged in her EEOC charge [of race and gender
discrimination] could have reasonably been extended to encompass a claim for retaliation.” Id. at
1280. We made clear in Gregory that “[t]he proper inquiry . . . is whether [the complaint to the
district court] was like or related to, or grew out of, the allegations contained in [the] EEOC
charge.” Id.; see also Wu v. Thomas, 863 F.2d 1543 (11th Cir. 1989) (“As long as allegations in
the judicial complaint and proof are reasonably related to charges in the administrative filing and
no material differences between them exist, the court will entertain them. . . . Judicial claims
which serve to amplify, clarify, or more clearly focus earlier EEO complaints are appropriate.”)
(quotation marks omitted). Thus, insofar as this allegation was “reasonably related” to Pizzini’s
EEOC charge, and “served to amplify, clarify, [and] more clearly focus [her] earlier EEO
complaint[],” it should have been considered by the district court. Nonetheless, as we explained
above, this allegation cannot reasonably support Pizzini’s hostile work environment claim.
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independent evidence to support that claim. At the same time, Pizzini concedes
that this statement occurred in a closed-door meeting between herself and a
supervisor, during which Pizzini accused the supervisor of failing to follow
through on an alleged agreement to change the content of Pizzini’s performance
review. In context, it appears that this statement had nothing to do with Pizzini’s
race; rather it related to a miscommunication with the supervisor.
The only remaining “comment[]” before us on appeal—specifically, that
“Puerto Ricans will never be promoted in the Miami Field Office because they
don’t know how to speak or write English”—cannot independently satisfy the
“severe or pervasive” prong.4 Our law is clear that to be actionable, a hostile work
environment must be both objectively and subjectively offensive. Jones, 683 F.3d
at 1299. In evaluating the objective severity of the harassment, we consider: (1)
the frequency of the conduct; (2) its severity; (3) whether it was physically
threatening or humiliating, or a “mere offensive utterance”; and (4) whether it
unreasonably interfered with the employee’s work performance. Id. Pizzini
admits that she was not present for this statement and does not know when it was
4
In her brief, Pizzini also alleges additional “racially derogatory comments,” specifically
statements that Hispanics “don’t know any English,” and “don’t know how to write English.”
Again, however, Pizzini provided no citations to the record to support these allegations. Our
independent endeavors to locate this evidence have failed. For this reason, these allegations are
also waived for purposes of Pizzini’s appeal. See Nat’l Alliance for the Mentally Ill, 376 F.3d at1295–96.
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made. There is no indication that the statement occurred more than once, was
accompanied by a physical threat or was humiliating, or that it unreasonably
interfered with her work performance. Under our precedent, an alleged one-time
statement such as this is insufficient to sustain a hostile work environment claim
against a motion for summary judgment. See McCann v. Tillman, 526 F.3d 1370,
1378–79 (11th Cir. 2008) (affirming summary judgment on appellant’s hostile
work environment claim where alleged conduct included two demeaning
comments made in appellant’s presence, and two additional racial epithets spoken
outside her presence, in a period of less than three years).
Finally, we cannot accept Pizzini’s suggestion that her involuntary
hospitalization independently establishes that her work environment was “hostile.”
First, as set out above, she has not demonstrated that the alleged conduct “was
severe or pervasive enough to alter the terms and conditions of [her] employment.”
See Jones, 683 F.3d at 1292. Second, her hospitalization was not, as Pizzini
implies, directly the result of any alleged conduct within her work environment.
Rather it was prompted by Pizzini’s distress when the DHS Office of Inspector
General (OIG) informed her that it would not be visiting the Miami field office
and that she should “summarize and forward information” regarding her EEOC
complaint to OIG for review. Third, by Pizzini’s own admission, she believed the
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hospitalization was an overreaction.
In sum, a reasonable jury could not return a favorable verdict on Pizzini’s
hostile work environment claim because the alleged conduct was not sufficiently
“severe or pervasive,” Jones, 683 F.3d at 1292, even when viewed in the light
most favorable to her. See Chapter 7 Trustee, 683 F.3d at 1254. Thus, the district
court properly granted DHS’s motion for summary judgment.
II. RETALIATION
A prima facie case of retaliation under Title VII requires the plaintiff to
show that: “(1) she engaged in statutorily protected activity; (2) she suffered a
materially adverse action; and (3) there was a causal connection between the
protected activity and the adverse action.” Chapter 7 Trustee, 683 F.3d at 1258
(quotation marks omitted); see also 42 U.S.C. § 2000e-3(a). The district court
determined that DHS was entitled to summary judgment on Pizzini’s retaliation
claim “because Pizzini [could not] show that she suffered an adverse employment
action after the filing of her EEO complaint,” a statutorily protected activity.
Pizzini argues that the district court erred in its determination that she did
not suffer a materially adverse action following her complaint to the EEOC.
Specifically Pizzini asserts that after she filed her EEOC Complaint, she was
denied a salary increase, reassigned positions from fleet custodian to property
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custodian, and received a negative performance appraisal. Based on our de novo
review of the record, however, Pizzini’s argument does not carry the day. First, as
noted by the district court, Pizzini filed her EEOC complaint after she learned
from her supervisor that she would not receive a pay increase. Thus, Pizzini did
not engage in “statutorily protected activity” until after the alleged “materially
adverse action.” Chapter 7 Trustee, 683 F.3d at 1258. Pizzini’s failure to receive
a pay increase therefore does not constitute a materially adverse action for
purposes of her retaliation claim.
Neither does Pizzini’s reassignment from fleet custodian to property
custodian constitute a materially adverse action. Again, Pizzini filed her EEOC
complaint only after learning of her reassignment. Also, Pizzini has pointed to no
evidence that her new position is “more arduous and dirtier” than her previous
position, or even that her former position “was objectively considered a better
job.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71, 126 S. Ct.
2405, 2417 (2006) (quotation marks omitted). Thus, Pizzini’s reassignment
cannot reasonably qualify as a materially adverse action for purposes of her
retaliation claim.
Finally, the content of Pizzini’s performance reviews is not sufficient to
qualify as a materially adverse action. The performance reviews were not adverse
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because, as indicated by the district court, they are “overall positive.” Beyond
that, there is little qualitative difference, if any, between the substance of the
reviews Pizzini received prior to filing her EEOC complaint and those she
received after filing her complaint.
Neither individually nor collectively could these alleged instances sustain a
favorable verdict on Pizzini’s retaliation claim. See Akins v. Fulton Cnty, Ga.,
420 F.3d 1293, 1301 (11th Cir. 2005). Thus, the district court properly granted
summary judgment. See Chapter 7 Trustee, 683 F.3d at 1258–59.
III. DISCRIMINATION
Among other things, Title VII makes it unlawful for an employer to
discriminate against any individual with respect to her “compensation, terms,
conditions, or privileges of employment, because of [her] race, . . . or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff establishes a prima facie case of
discrimination by showing that: “(1) she belongs to a protected class; (2) she was
qualified to do the job; (3) she was subjected to adverse employment action; and
(4) her employer treated similarly situated employees outside her class more
favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). The district
court entered summary judgment in favor of DHS on Pizzini’s discrimination
claim because “Pizzini [could not] show that she suffered an adverse employment
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action as a result of her race or national origin.”
Pizzini challenges the district court’s determination by alleging “differential
application of work rules” based on a supervisor’s “refusal to approve [her] leave
requests until all non-Hispanic program assistants had submitted their leave
requests”; a supervisor’s “refusal to assist [her] with her work duties”; and a
supervisor’s demand that she “perform duties not required of her non-Hispanic
coworkers.”
Pizzini’s allegation about her leave requests cannot reasonably support her
discrimination claim for the same reasons that it cannot reasonably support her
hostile work environment claim. Her remaining allegations are waived because
once again, and as we discussed above, Pizzini has not provided citations to the
record, and she has not provided evidentiary support to show the “duties” of which
she speaks. See Nat’l Alliance for the Mentally Ill, 376 F.3d at 1295–96; cf. Doe,
410 F.3d at 1349 n.10. Thus, because Pizzini has failed to make a prima facie
allegation of an adverse employment action based on her race or national origin,
her discrimination claim fails. See Crawford, 529 F.3d at 970–71.
IV.
For these reasons, the district court’s grant of summary judgment in favor of
DHS is
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AFFIRMED.
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