Linda Holder v. R. James Nicholson , 287 F. App'x 784 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 23, 2008
No. 07-14561 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00576-CV-RRA-S
LINDA HOLDER,
Plaintiff-Appellant,
versus
R. JAMES NICHOLSON,
Secretary, Department of Veterans Affairs,
SCOTT ISAACKS,
individually and in his official capacity as
Clinical Operations Manager, Diagnostic Medicine Services,
GARY COLEY,
individually and in his official capacity as Chief
Technologist, Radiology Services,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 23, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Linda Holder, an African-American woman and a former employee of the
Department of Veterans Affairs hospital (“the hospital”), appeals the district
judge’s grant of summary judgment to the Secretary of the Department of Veterans
Affairs (“the Secretary”) in her suit alleging racial and sexual discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, age discrimination
under 29 U.S.C. § 621 et seq., and unlawful retaliation for opposing such
discrimination. Because the evidence before the district judge, viewed in the light
most favorable to Holder, did not support her numerous claims of discrimination,
and she has advanced no specific error on appeal, we affirm.
I. BACKGROUND
Holder filed a multi-count complaint against the Secretary, as well as two of
her supervisors, and asserted various causes of action related to wrongs that
allegedly occurred during her employment at the hospital. R1-1. Pursuant to
Holder’s subsequent motion for voluntary partial dismissal, the district judge
dismissed the two supervisor defendants and all causes of action other than the
discrimination and retaliation claims in Count Three of her complaint. R1-19, 23.
In Count Three, Holder alleged that she suffered discrimination and retaliation
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because she was held to a higher standard than similarly situated white and
younger employees, and she was subjected to frequent unmerited disciplinary
actions. R1-1 at 17-18. More specifically, she alleged that, on or about May 13,
2004, her supervisors required her to attend a meeting without union
representation, supervisor Gary Coley harassed her in front of a patient, and
supervisor Scott Issacks required her to take administrative leave for the day. Id. at
18. Additionally, she alleged that the next day Coley instructed her to remain on
administrative leave until further notice; she later was removed from employment,
replaced by an unprotected individual, and did not receive her final paycheck. Id.
at 18-19. Holder stated that she had exhausted her administrative remedies as to
these claims and attached her complaint to, and letter from, the Equal Employment
Opportunity Commission (“EEOC”). Id. at 20-21; see id. Exhs. A and B.
In her complaint to the EEOC, Holder asserted claims substantially identical
to those in Count Three of her judicial complaint. Id. Exh. A at unnumbered 1, 3-
4. Regarding her termination, Holder stated that, after a verbal dispute with her
supervisor, she was placed on indefinite administrative leave on May 14, 2004, and
that she received notice of a proposed termination on June 29, 2004. Id. Exh. A at
1-3. By letter, the EEOC advised Holder of the dismissal of her EEOC claims and
informed her that she had failed to contact an EEO counselor to discuss the events
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described in her claims within the 45-day period required by EEOC regulations.
Id. Exh. B at 1-3. The EEOC letter states that it was the final agency decision
regarding her claims of harassment and being placed on administrative leave and
that Holder was permitted to file a judicial action with regard to those claims;
concerning her termination claim, Holder was permitted to file an administrative
appeal. Id. at 3-5. At the close of discovery, the Secretary filed a motion for
summary judgment. Proceeding pro se, Holder filed a response. Thereafter, the
magistrate judge issued an extensive and detailed report and recommendation on
the motion for summary judgment. R2-70.
The magistrate judge found that, by failing to argue a number of her claims
in her response to the Secretary’s motion for summary judgment, Holder had failed
to establish a prima facie case of discrimination concerning those claims.1 Those
claims included: (1) Holder’s 7-day suspension, id. at 52, (2) her assignment to
perform a procedure that she did not know how to perform, id. at 53, (3) her
assignment to file x-rays, id. at 55, (4) the miscellaneous acts of reprisal alleged in
a July 2003 EEOC complaint, id. at 56, and (5) her 14-day suspension, id. at 57-58.
1
As to each of these claims, the magistrate judge also found that, even if Holder had
raised the claims, the evidence demonstrated that the Secretary was entitled to summary
judgment. R2-70 at 52-58.
4
Concerning the remaining claims, the magistrate judge first found Holder’s
claim of racial harassment related to an altercation with a coworker, when Holder
attempted to reach for the telephone as a coworker was attempting to call
supervisor Coley, and the coworker slapped Holder on the arm. Id. at 16-17. The
magistrate judge found that the EEOC, upon reviewing the complaint containing
this claim, as well as several other claims, partially dismissed the assault claim
without an investigation and notified Holder that she could appeal the partial
dismissal of the assault claim once the agency had issued a final decision regarding
her remaining claims. Id. at 17-18. The magistrate judge concluded that, under
EEOC regulations, Holder had 30 days following the EEOC’s final decision
concerning her remaining claims to appeal her partially dismissed assault claim;
her administrative appeal, however, did not raise that claim, and she raised it for
the first time in her judicial complaint, more than one year from the date of the
final EEOC decision. Id. at 17-18, 43-45. Therefore, the magistrate judge decided
that Holder had not exhausted her administrative remedies concerning this claim.
Id. at 45. The magistrate judge further found that, even if this claim had not
precluded, it represented a single incident that was not sufficiently severe and
pervasive to alter the terms and conditions of Holder’s employment. Id. at 46.
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Second, regarding Holder’s claim that she had suffered racial and sexual
discrimination because of her employer’s failure to train her in CT scan
procedures, the magistrate judge found that a shortage of CT technicians during the
day shift caused supervisor Coley to schedule several day-shift employees to assist
with support and clerical duties in the CT department, but none of them had
received technical CT training; Holder was not included in the scheduling because
she worked the night shift. Id. at 18-23. The magistrate judge found that Holder
had not established a prima facie case of disparate treatment because the evidence
showed that no CT training was offered to anyone; consequently, she was not
treated differently from any other employee in not receiving the training. Id. at 47.
Third, concerning Holder’s claim that she had suffered age discrimination
and unlawful retaliation because she was not given a bonus, the magistrate judge
found that supervisor Issacks awarded $50 incentive awards to employees who had
not had a disciplinary action that year but decided that Holder, who had received a
disciplinary action earlier that year in relation to a racially offensive outburst
against a fellow employee, should not receive an award. Id. at 23-24. The
magistrate judge found that Holder had not provided admissible evidence to rebut
this nondiscriminatory reason for denying her the award; her statement that another
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reprimanded employee had received the award was hearsay, because it was not
based on her personal knowledge. Id. at 47-48.
Fourth, regarding Holder’s claim that she had suffered unlawful retaliation
in December 2002, when she was not selected for the position of CT Scan Tech,
the magistrate judge found that Coley, along with Warren Dukes, the hospital’s
radiological supervisor, had interviewed Holder and another candidate for the
position and had given each candidate scores. Id. at 25-26. According to Coley’s
interview notes: (a) the other candidate had specific training and experience in CT
procedures, while Holder had observed but never trained in or performed CT
scans; (b) the other candidate often was requested by other employees to assist in
the emergency room, while Holder often was confrontational and argumentative
with her coworkers; and (c) the other candidate had been commended by past
supervisors for her high-quality work, while Holder had been disciplined in the
past for refusing to perform certain procedures. Id. at 26-27. Issacks testified that
the other candidate was chosen because she had more CT experience. Id. at 27-28.
The magistrate judge noted, however, that Henry Luckett, a retired CT Tech, had
stated that he had trained Holder in CT procedures in the past, and Holder had a
general knowledge of some of the skills required to be a CT Tech. Id. at 28. The
magistrate judge determined that Luckett did not testify that Coley knew of this
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training, although Coley did know that Holder had worked with Luckett in the CT
department. Id. at 28. The magistrate judge found that the Secretary had
articulated legitimate business reasons for not awarding Holder the position and
that Holder had not provided evidence sufficient to demonstrate that a reasonable
employer would not deem the other candidate’s qualifications greater than her
own; therefore, she had not demonstrated that the employer’s action was unlawful.
Id. at 48-52.
Fifth, concerning the incident in which Holder allegedly was denied union
representation, and a phone was snatched from her, the magistrate judge found that
Coley had met with Holder to discuss her competency evaluation, Holder requested
that a union representative be present at the meeting, and, while in Coley’s office,
Holder tried to use Coley’s phone without permission and was refused by Coley.
Id. at 33-36. The magistrate judge found that Holder had not presented evidence
that she was denied union representation, or that, even if that had been the case, the
denial was an act of discrimination. Id. at 58. The magistrate judge stated that,
even if management’s conduct in this instance did constitute retaliatory
harassment, it was not sufficiently severe and pervasive to alter the terms of
Holder’s employment. Id.8
Sixth, regarding Holder’s claim that she had been harassed and unlawfully
terminated, the magistrate judge found that: (a) the EEOC dismissed these claims
because Holder failed to initiate contact with an EEO counselor within 45 days of
the alleged conduct; (b) the stated reasons for Holder’s termination were failure to
follow instructions, unreasonable delay in providing patient care, and disrespectful
conduct toward other personnel; and (c) Holder’s supervisor made the decision to
suspend Holder after reviewing the evidence and considering Holder’s years of
service, work record, and the seriousness of the charges against her. Id. at 39-40.
The magistrate judge determined that the claim should be dismissed with prejudice
because Holder had failed timely to seek EEO counseling on the claim. Id. at 59-
60. The magistrate judge concluded that Holder had presented no evidence to
substantiate her assertions that she timely had contacted a counselor or that she did
not know that she had been terminated until a date within 45 days of the day on
which she sought counseling. Id. at 60-61. Therefore, the magistrate judge
recommended that the Secretary’s motion for summary judgment be granted. Id. at
61. Neither party filed objections to the report and recommendation; the district
judge adopted the magistrate judge’s report and recommendation, granted the
Secretary’s summary-judgment motion, and dismissed Holder’s claims with
prejudice. R2-71, 72.
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II. DISCUSSION
Holder generally asserts on appeal that the district judge erred by finding
that her evidence was insufficient to state a claim for discrimination and retaliation
for prior EEO activity. Intermixed with her claims are several legal arguments. In
what appears to be a reference to the district judge’s finding that she had failed to
raise her wrongful termination claim timely, Holder asserts that she did not know
that she had been terminated from her job until August 25, 2004, because money
still was being deposited into her account. She states that her termination claim
was “inextricably intertwined” with her claims of harassment. Appellant’s Br. at 5.
In a reference to the district judge’s finding that she had failed to exhaust her claim
about the alleged assault in a struggle for the telephone, Holder states that she
appealed the entire case number containing that claim. Her appellate brief includes
an appendix with new responses to statements of fact that the Secretary submitted
to the district judge along with his motion for summary judgment.
In her reply brief, Holder states that (a) she did not waive arguments that she
failed to raise in her opening brief, and those arguments should be reviewed for
plain error; (b) because she is a pro se litigant, we should review all claims that
were dismissed in the district court, including the counts in her complaint that she
voluntarily dismissed; (c) we should consider new evidence on appeal, a
10
proposition that she supports by citing three Social Security cases; and (d) the
district judge erred by finding that she had not exhausted certain claims in her
complaint.
We review a district judge’s granting summary judgment de novo and apply
the same standards. Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999).
“Summary judgment is appropriate when ‘there is no genuine issue as to any
material fact . . . and the moving party is entitled to a judgment as a matter of
law.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004)
(quoting Fed. R. Civ. P. 56(c)). The existence of some nonmaterial factual dispute
is insufficient to survive a motion for summary judgment. Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). For a factual dispute to
be considered “material,” there must be “sufficient evidence favoring the
nonmoving party for a reasonable jury to return a verdict in its favor.” Id. at 1023.
(quotation omitted).
Issues not briefed on appeal, even by a pro se litigant, are deemed
abandoned. Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Further, a
party may not incorporate by reference arguments presented to the district judge;
there must be specific and clear identification of the issues presented for review
with citations to authorities and portions of the record on which the appellant
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relies. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d
1164, 1167 n.4 (11th Cir. 2004). Moreover, we have held that “[f]ailure to raise an
issue, objection or theory of relief in the first instance to the trial court generally is
fatal,” and we have applied that rule to bar consideration of claims that a plaintiff’s
brief did not raise in response to a defendant’s motion for summary judgment and
recognized that a plaintiff may not “‘bury a minor claim in a voluminous
complaint, ignore the claim in responding to a motion for summary judgment and
then sandbag its opponents and the court by resurrecting the claim after summary
judgment is granted.’” Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d
1274, 1284 & n.6 (11th Cir. 2003) (citation omitted).
A federal employee who wishes to bring an action under Title VII must first
exhaust her administrative remedies by bringing her complaint before the EEOC
and providing it with all of the information that it needs to investigate and resolve
the dispute. Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999). Prior to
filing a formal complaint with the EEOC, federal employees who believe that they
have suffered discrimination must contact an EEO counselor within 45 days of the
allegedly discriminatory act, but the EEOC may extend that deadline, if the
complainant shows that she was unaware of the time limit or was prevented from
circumstances beyond her control from meeting the deadline. 29 C.F.R.
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§ 1614.105(a)(1), (2). The EEOC must dismiss a complaint that is not timely
brought before a counselor. 29 C.F.R. § 1614.107(a)(2). If the EEOC partially
dismisses a complaint, the complainant may initiate an EEOC appeal of the
dismissed claims only when a final decision has been taken on the remaining
claims. 29 C.F.R. § 1614.107(b). After the agency itself has rendered a final
decision on a federal employee’s complaint, the employee has the option to appeal
the decision to either the federal district court or to the EEOC. 42 U.S.C. § 2000e-
16(c). In either case, however, the complainant must file the appeal within 30 days
from the final decision. 29 C.F.R. § 1614.402(a), 401(a).
To succeed on her exhausted claims of employment discrimination based on
circumstantial evidence, Holder must follow the framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.
Ct. 1817, 1824 (1973), which we have paraphrased:
Under the familiar McDonnell Douglas framework, the plaintiff
must first create an inference of discrimination through his prima facie
case. Once the plaintiff has made out the elements of the prima facie
case, the burden shifts to the employer to articulate a
non-discriminatory basis for its employment action. If the employer
meets this burden, the inference of discrimination drops out of the
case entirely, and the plaintiff has the opportunity to show by a
preponderance of the evidence that the proffered reasons were
pretextual. Where the plaintiff succeeds in discrediting the employer's
proffered reasons, the trier of fact may conclude that the employer
intentionally discriminated.
13
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) (per
curiam) (citations omitted).
To establish a prima facie case for discrimination based on a theory of
disparate treatment, a plaintiff must show that “(1) she is a member of a group
protected by Title VII; (2) she was qualified for the position or benefit sought;
(3) she suffered an adverse effect on her employment; and (4) she suffered from a
differential application of work or disciplinary rules.” Spivey v. Beverly
Enterprises, Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). To create a prima facie
case for discrimination on the basis of sexual or racial harassment, one must
establish that the alleged act(s) of harassment were “sufficiently severe or
pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment.” Cotton v. Cracker Barrel Old
Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006). An employer may not
retaliate against an employee because the employee “has opposed any practice
made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-
3(a).
Once the plaintiff has established a prima facie case, and the employer has
met its burden to produce a legitimate, nondiscriminatory reason for an adverse
employment action, the plaintiff may establish that the employer’s proffered reason
14
is a pretext for unlawful discrimination “‘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.’”
Carter v. Miami, 870 F.2d 578, 584 (11th Cir. 1989) (quotation omitted). To find
in favor of the employer, a finder of fact “‘need not determine that the employer
was correct in its assessment of the employee's performance; it need only
determine that the defendant in good faith believed plaintiff's performance to be
unsatisfactory.’” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.
1991) (citation omitted). In addition, we have held that a plaintiff cannot
demonstrate that the employer’s proffered reason was pretextual merely by calling
into question the wisdom of the employer’s decision; rather, the plaintiff must
“meet that reason head on and rebut it” with evidence of discrimination. Chapman
229 F.3d at 1030.
Viewing the evidence in the light most favorable to Holder, the district judge
did not err by granting summary judgment to the Secretary on each of her claims.
First, Holder made no argument in her brief regarding several claims in response to
the Secretary’s motion for summary judgment: (a) her 7-day suspension after a
confrontation over an incorrect x-ray, R2-70 at 29-31; (b) her assignment to do a
procedure that she did not know how to perform, id. at 31-32; (c) her assignment to
15
file x-rays in the evening, id. at 32-33; (d) the miscellaneous acts of reprisal
contained in her July 2003 EEOC complaint, which included someone’s turning
off the lights, Coley’s snatching a phone from her during a meeting, and a
coworker’s being unfriendly to her, id. at 33-36; and (e) her 14-day proposed
suspension, id. at 36-39. Accordingly, we will not review those claims. Holder
has buried multiple claims in her voluminous complaint, has ignored claims in
responding to the summary-judgment motion, and then attempted to resurrect the
claims after summary judgment was granted. Iraola & CIA, S.A., 325 F.3d at 1284
n.6. Additionally, regarding Holder’s claims that she was denied training for and
promotion to an MRI Tech position, the magistrate judge accurately found that she
had dropped those claims in her proceedings before the EEOC, and, therefore, they
are not properly before us. R2-70 at 28-29; Doc. 37-2 at 79-83.
Concerning Holder’s remaining claims, the district judge accurately found
that, while she allegedly was assaulted by a coworker during an altercation over a
telephone, Holder had not exhausted her administrative remedies as to this claim,
because she did not raise the claim in her administrative appeal within 30 days
from the final decision. R2-70 at 44-46. Even if she had exhausted the claim, she
had not created a prima facie case for discrimination because the claim alleged
only a single instance of minor physical contact during an argument, which was not
16
sufficiently severe and pervasive to create a hostile work environment or alter the
terms of her employment. Cotton, 434 F.3d at 1231. With regard to Holder’s
claim that she was denied CT training, because all of the testimony on this point
demonstrated that no training was offered during the CT rotations for which she
was not scheduled, R2-70 at 18-21, Holder was not denied an opportunity that was
afforded to others, and, therefore, she did not establish a prima facie case for
discrimination. Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642-
45 (11th Cir. 1998).
Regarding Holder’s claim that she was not given a $50 bonus, even if she
had established a prima facie case for reprisal for prior EEO activity, she presented
no evidence to refute Issacks’s testimony that he denied her the award based on his
belief that she had received a reprimand, and he did not give the award to anyone
who had received a reprimand. R2-70 at 23-25. While Holder asserted that
another employee who had received a reprimand received the award, she provided
no evidence for this proposition and admitted that she had no personal knowledge
of whether the other employee had received the award. Id. at 23 n.13. Therefore,
because Holder failed to present evidence to “meet head on and rebut” Issacks’s
proffered nondiscriminatory reason for denying her the award, the district judge
17
did not err by granting the Secretary summary judgment on this claim. Chapman
229 F.3d at 1030.
Concerning Holder’s claim that she had not been promoted to the CT Scan
Tech position, and assuming that she had established a prima facie case for
discrimination, because the other candidate had not been involved in prior EEO
activity, all of the testimony showed that Holder was not chosen based on the
nondiscriminatory reason that those making the selection believed the other
candidate was more qualified. R2-70 at 25-28. Despite Holder’s assertion that she
had worked as an x-ray technician for longer than the candidate selected, Holder
presented no evidence to refute the claim that the decisionmakers nonetheless
genuinely believed that the other candidate was better for the job, as illustrated by
Coley’s testimony that the other candidate had more experience actually working
with CT technology and a better reputation for working well with others and
following instructions. Elrod, 939 F.2d at 1470; Chapman, 229 F.3d at 1030.
Therefore, the district judge did not err by granting the Secretary’s motion for
summary judgment on this claim.
Finally, regarding Holder’s claim that she had been wrongfully terminated,
the EEOC determined that Holder had failed to exhaust this claim by not
presenting it to an EEO counselor within 45 days of her termination; although her
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termination was final on July 30, 2004, Holder did not make initial contact with an
EEO counselor regarding her claim until September 29, 2004, and the record
showed that she should have been aware of the time limits and was not prevented
from circumstances beyond her control from timely contacting an EEO counselor.
R1-1, Exh. B at 1-3. In her complaint to the EEOC regarding her termination,
Holder stated that, after a verbal dispute with her supervisor, she was placed on
indefinite administrative leave on May 14, 2004, and received notice of a proposed
termination on June 29, 2004; these factual assertions support the EEOC’s
determination that she should have been aware of her termination in time to contact
an EEO counselor within 45 days of July 30, 2004, more than one month after she
conceded that she received notice of a proposed termination. Id. Exh. A at 1-3.
Therefore, the district judge did not err by determining that Holder had failed to
exhaust her administrative remedies by failing to contact an EEO counselor within
45 days of her adverse employment action. 29 C.F.R. § 1614.107(a)(2). Holder’s
contention that her termination claim was inextricably intertwined with her other
claims is inaccurate on its face, because her termination was a separate act from her
other claims, such as, a coworker’s hitting her or her not being selected for a
promotion. Moreover, this argument is unsupported by the facts in the record,
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which show that Holder, in her numerous complaints to the EEOC, treated each
perceived wrong as a separate action. R2-70 at 16-41, R1-1 at 4-13.
III. CONCLUSION
Holder has appealed the district judge’s granting summary judgment to the
Secretary in her action alleging racial and sexual discrimination. Viewed in the
light most favorable to Holder, the evidence before the district judge did not
support her numerous claims of discrimination, and she has alleged no specific
error on appeal. Accordingly, the district judge’s granting summary judgment to
the Secretary is AFFIRMED.
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