Craig Galloway v. GA Technology Authority

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15055 MAY 16, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-02430-CV-WSD-1
CRAIG GALLOWAY,
Plaintiff-Appellant,
versus
GA TECHNOLOGY AUTHORITY,
State of Georgia,
DEPARTMENT OF ADMINISTRATIVE SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(MAY 16, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Craig Galloway, a white male, appeals pro se the summary judgment granted
in favor of his former employers, the Department of Administrative Services
(DOAS) and the Georgia Technology Authority (GTA) regarding Galloway’s
complaint of sexual harassment and retaliation in violation of Title VII of the Civil
Rights Act of 1964, retaliation in violation of both the Americans with Disabilities
Act and the Family Medical Leave Act, and intentional infliction of emotional
distress under Georgia law. We affirm.
I. STANDARD OF REVIEW
We review de novo the grant of a motion for summary judgment. Rojas v.
Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). Summary judgment is appropriate
“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 judgment as a matter of law.”
Fed.R.Civ.P. 56(c). We review for an abuse of discretion the application of local
rules by the district court. See Brown v. Thompson, 430 F.2d 1214, 1215-16 (5th
Cir. 1970).
II. DISCUSSION
At the outset, we note that although Galloway mentions his disparate
treatment claims under Title VII and recites some of the facts regarding those
claims, he does not make any arguments as to the merits of his disparate treatment
claims. Although Galloway lists facts that he believes constitute violations of the
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FMLA, he does not argue the merits of his interference claims. Galloway purports
to raise the issue whether the magistrate judge erred by finding that the defendants’
statement of facts was uncontroverted, but Galloway did not offer an argument on
this issue. Finally, Galloway did not address the findings of the district court that
he abandoned his race discrimination claim under Title VII, that he was not
disabled under the ADA, or the resolution of his section 1983 and defamation
claims. Because Galloway fails to make any of these arguments on appeal, we
consider them waived. See Farrow v. West, 320 F.3d 1235, 1242 n.10 (11th Cir.
2003); Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3 (11th Cir. 2002).
Galloway raises four issues on appeal. First, Galloway contends that the
district court erred when it found that he failed to show that the reasons for the
denial of a pay raise, the denial of promotion, and his termination were pretext for
retaliation and that the other alleged retaliatory conduct were not adverse
employment actions. Second, Galloway argues that the district court erred when it
found that the alleged sexually harassing conduct was not sufficiently severe or
pervasive to alter the terms and conditions of his employment. Third, Galloway
argues that the district court erred when it found that his employer’s conduct was
not extreme and outrageous and granted summary judgment on his claim of
intentional infliction of emotional distress. Finally, Galloway contends that the
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district court abused its discretion in its treatment of Galloway’s pro se pleadings.
We address each issue in turn.
A. Retaliation Claims
Galloway lists a multitude of facts that he contends constitute retaliation for
his complaints regarding gender discrimination in violation of Title VII, requests
for accommodations in violation of the ADA, and his FMLA leave. Galloway
identifies the following as adverse employment actions that affected the terms and
conditions of his employment: (1) he was excluded from meetings and training and
development; (2) he was not provided with the recruiting tools that were promised
when he accepted the position, and his “Net-Temps” recruiting tool was taken
away; (3) he did not receive a promised pay increase in 1999; (4) he was given
retaliatory reprimands and lower evaluations than his actual performance merited;
(5) separate rules were imposed on him; (6) he was not promoted to the position of
Human Resources Officer; (7) he was exposed to a hostile work environment; (8)
he lost his teleworking privileges; and (9) he was terminated.
Galloway argues that he presented sufficient evidence of pretext. He
contends that each time he engaged in protected activity under either Title VII, the
ADA or the FMLA, his employer retaliated against him. Galloway further
contends that his employer prepared to fire him when it took the following actions:
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(1) hiring Audrey Hines as a Human Resources Consultant, which was also his
position; (2) forcing Galloway to train other Human Resource Consultants how to
recruit; (3) denying Galloway training; (4) assigned an attorney to respond to
Galloway’s requests under the ADA and requests for FMLA leave;
(5) conditionally authorizing Galloway’s FMLA leave so that Galloway could be
examined by another doctor for a second opinion; (6) failing to renew Galloway’s
state association membership; (7) requiring Galloway to see Dr. Davis, a forensic
psychologist frequently used by the state in litigation; and (8) refusing to allow
Galloway’s mother to reschedule his appointment with Dr. Davis. He argues that
this evidence establishes that his employer intended to terminate him before he
failed to attend the required medical examination, which was the stated reason for
his termination.
To establish a prima facie case of retaliation under Title VII, the ADA and
the FMLA, Galloway must show that he (1) engaged in statutorily protected
activity; (2) suffered an adverse employment action; and (3) the adverse action was
causally related to the protected activity. Williams v. Motorola, Inc., 303 F.3d
1284, 1291 (11th Cir. 2002); Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791,
798 (11th Cir. 2000). “An adverse employment action is an ultimate employment
decision, such as discharge or failure to hire, or other conduct that alters the
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employee’s compensation, terms, conditions, or privileges of employment, that
deprives him or her of employment opportunities, or adversely affects his or her
status as an employee.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th
Cir. 2000) (internal quotation marks and citation omitted). “Whether an action is
sufficient to constitute an adverse employment action for purposes of a retaliation
claim must be determined on a case-by-case basis, using both a subjective and an
objective standard.” Id. (internal citations omitted). “[N]ot all conduct by an
employer negatively affecting an employee constitutes adverse employment
action[,]” . . . and “Title VII[ ] is neither a general civility code nor a statute
making actionable the ordinary tribulations of the workplace.” Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1238-39 (11th Cir. 2001) (internal quotations and
citations omitted).
“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.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir. 2001). If that burden is met, the plaintiff then bears the ultimate burden of
proving, by a preponderance of the evidence, that the reason is a pretext for
retaliatory conduct. Id. “If the proffered reason is one that might motivate a
reasonable employer, a plaintiff cannot recast the reason but must meet it head on
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and rebut it.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.
2004) (internal citation omitted).
Galloway alleges nine adverse employment actions. The district court
concluded that three constituted adverse employment actions, but that Galloway
did not establish that his employer’s articulated reasons for the actions were
pretextual. As to the other alleged adverse employment actions, the district court
concluded that the actions did not constitute adverse employment actions because
they did not alter the terms of Galloway’s employment. We first address the
actions that constitute adverse employment actions and then address the other
employment actions alleged by Galloway.
1. Denial of Pay Raise, Denial of Promotion, and Termination
It is clear that the denial of a pay raise, the denial of a promotion, and a
termination constitute adverse employment actions. See, e.g. Walker v. Mortham,
158 F.3d 1177, 1178 (11th Cir. 1998); Gupta, 212 F.3d at 590. Although these
decisions qualify as adverse employment actions, it is not clear that Galloway
established a prima facie case of retaliation regarding any of them. Even if we
assume that Galloway established a prima facie case, his complaint still fails.
The DOAS and GTA articulated a legitimate reason for each adverse
employment action. First, Galloway was not given a pay raise because employees
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were not given pay raises in their first year of employment. Second, Galloway was
not promoted to the Human Resource Officer position because he was not as
qualified as the individual who received the position. Finally, Galloway was
terminated because he failed to attend a required medical examination regarding
his FMLA leave. The burden then shifted back to Galloway to establish that these
reasons were pretexts for retaliation. See id.Galloway failed to meet his burden. Other than his bald assertions,
Galloway offered no evidence that the stated reasons for the adverse employment
actions were pretextual. Galloway did not contest that employees were not given
pay raises during their first year of employment, the individual given the Human
Resources Officer position was more qualified, and Galloway did not attend the
required medical examination. Because Galloway failed to establish that his
employer’s reasons for the denial of the pay raise, denial of the promotion, and his
termination, were pretext for retaliation in violation of Title VII, the ADA, or the
FMLA, the district court correctly granted summary judgment on these claims.
2. Other Employment Actions
Regarding the other alleged employment actions, the district court properly
concluded that none rise to the level of adverse employment actions. Simply put,
there is no evidence than any of these employment actions had any tangible effect
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on Galloway’s employment. See Davis, 245 F.3d at 1239. Galloway’s subjective
belief that he was being unfairly denied benefits is insufficient, and Galloway
offers no argument as to how these alleged adverse employment actions were
sufficiently material and serious to alter the terms and conditions of his
employment. As such, Galloway failed to establish a prima facie case of retaliation
regarding these employment actions, and the district court correctly granted
summary judgment on these claims of retaliation.
B. Sexual Harassment
Galloway argues that he was subjected to an objectively hostile work
environment because of his sex. As evidence of the hostile work environment,
Galloway testified about the following four categories of comments: (1) comments
that men were unable to do tasks assigned to them; that men were “abusive,”
“insensitive,” “jerks,” and “stupid”; that “penises” were not allowed in the group;
and that men should be screened out from the workplace; (2) discussions about
mutilating men’s genitals; (3)“male-bashing material, offensive pornographic
material, [and] sexist comments[, including] references to seeing his butt in a pair
of jeans”; and (4) comments about Galloway’s intelligence. Galloway argues that
these comments, coupled with the fact that his female co-workers were treated
better than he was, established an “anti-male bias” in the workplace.
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To establish a prima facie case of sexual harassment, an employee must
prove that (1) he belongs to a protected group; (2) he was subjected to unwelcome
sexual harassment; (3) the harassment complained of was based on his sex; (4) the
harassment complained of was sufficiently severe or pervasive to alter the terms or
conditions of employment and to create a discriminatorily abusive working
environment; and (5) the defendant is responsible for such environment under
either a theory of vicarious or direct liability. Walton v. Johnson & Johnson
Servs., Inc., 347 F.3d 1272, 1279-80 (11th Cir. 2003). The employee must present
concrete evidence in the form of specific facts, not just conclusory allegations and
assertions. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
“A hostile work environment claim under Title VII is established upon proof
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.” Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (internal quotations omitted).
“In evaluating the objective severity of the harassment, we consider, among other
factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee’s
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job performance.” Id. at 1276. Moreover, “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998) (citation omitted).
Galloway failed to establish a prima facie case of sexual harassment because
the alleged comments were not sufficiently severe or pervasive to alter the terms
and conditions of his employment. Although the alleged comments were arguably
frequent and may have been juvenile, crude, and unprofessional, the comments
were not physically threatening or humiliating. Most of the comments were not
addressed at Galloway, and were made by co-workers, not his supervisors. Most
importantly, the record is devoid of any evidence that the alleged comments altered
the terms and conditions of Galloway’s employment. Galloway’s allegations fall
far short of the threshold requirement that harassment be severe and pervasive.
The district court correctly granted summary judgment against Galloway’s claim of
sexual harassment.
C. Intentional Infliction of Emotional Distress
Galloway argues that his supervisors continued their behavior of “male-
bashing” and retaliation with the knowledge that he was susceptible to emotional
distress. The DOAS and GTA respond that district court properly granted
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summary judgment because the conduct alleged by Galloway was not extreme and
outrageous under Georgia law. We agree with DOAS and GTA.
For an employee to prevail on a claim of intentional infliction of emotional
distress under Georgia law, he must demonstrate that (1) the employer’s conduct
was extreme and outrageous; (2) the employer acted recklessly or intentionally;
(3) the conduct of the employer caused emotional distress; and (4) the emotional
distress was severe. Lightning v. Roadway Exp., Inc., 60 F.3d 1551, 1558 (11th
Cir. 1995). Georgia courts have imposed liability only when the employer’s
conduct “has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Biven Software, Inc. v. Newman, 473
S.E.2d 527, 529 (Ga.App. 1996). Derogatory comments made in the workplace
generally do not rise to this level and are usually considered “a common vicissitude
of ordinary life.” Jarrard v. United Parcel Serv., 529 S.E.2d 144, 146 (Ga.App.
2000).
Galloway failed to establish that his supervisors’ conduct was so extreme or
outrageous that a reasonable person would find it atrocious and intolerable in a
civilized society. See Biven Software, Inc., 473 S.E.2d at 529-30. His following
allegations fell far short of that standard: (1) complaints being met with hostility;
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(2) being moved to a small and messy cubicle; (3) comments about the tidiness of
his workspace; (4) being shown a pornographic photograph; and (5) being asked
whether he enjoyed his vacation, although he was at a funeral. Most of this
conduct amounts to nothing more than insensitive or inconsiderate actions by co-
workers and is not actionable under Georgia law. See Jarrard, 529 S.E.2d at 147.
Although daily sexual harassment, if severe and pervasive, could be considered
extreme and outrageous, Galloway did not establish severe or pervasive sexual
harassment. The district court correctly granted summary judgment on this claim.
D. Pro Se Status
Galloway argues that, by requiring him to comply with Local Rule
56.1(B)(2)(a), the magistrate judge failed to construe his pleadings liberally.
Galloway contends that he highlighted a litany of discriminatory and retaliatory
acts and submitted evidence in support of his claims, and argues that the magistrate
judge trivialized his claims and ignored key pieces of evidence. We disagree.
Although “[p]ro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and” are “liberally construed,” Trawinski v. United
Techs., 313 F.3d 1295, 1297 (11th Cir. 2002), pro se litigants still must comply
with the procedural rules governing the proper form of pleadings. McNeil v.
United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 1984 (1993). “[L]ocal rules are
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effective unless modified or abrogated by the judicial council of the relevant
circuit.” Brown v. Crawford County, Ga., 960 F.2d 1002, 1009 n.10 (11th Cir.
1992) (internal quotations omitted). The district court did not abuse its discretion
when it applied the local rules.
Under Local Rule 56.1 of the Northern District of Georgia, a party moving
for summary judgment must include “a separate, concise, numbered statement of
the material facts to which the movant contends there is no genuine issue to be
tried.” L.R. 56.1(B)(1). The district court deems the movant’s facts admitted
unless the opposing party either refutes the facts with citations to evidence or law
or states a valid objection to the movant’s evidence. L.R. 56.1(B)(2)(a). Galloway
was aware of and understood the local rules of the district court as he cited to them
when he requested extensions of time.
Under Local Rule 56.1, Galloway’s response to the statement of facts of his
former employer was wholly inadequate. He did not cite any evidence in the
record and did not refute the statements of fact that he denied. Even though
Galloway failed to follow the local rules, the 84-page report and recommendation
of the magistrate judge thoroughly addressed Galloway’s numerous claims and
cited to both record evidence and Galloway’s brief.
Throughout this litigation, the district court treated Galloway with leniency
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and respect, but the court was not required to act as Galloway’s de facto counsel.
The district court provided Galloway over two years to conduct discovery and
granted a generous extension to respond to the motion for summary judgment filed
by Galloway’s former employer. The district court treated Galloway’s pleadings
liberally and did not abuse its discretion.
III. CONCLUSION
The summary judgment of the district court is AFFIRMED.
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