Valerie Diamond v. Morris, Manning & Martin, LLP

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11918 FEBRUARY 8, 2012
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cv-02894-TCB
VALERIE DIAMOND,
Plaintiff-Appellant,
versus
MORRIS, MANNING & MARTIN, LLP,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 8, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Appellant Valerie Diamond appeals the district court’s order granting
summary judgment in favor of Appellee Morris, Manning & Martin, LLP (MMM),
in her suit for retaliation brought pursuant to 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a). Diamond, an
African-American and former employee of MMM, alleged that she was placed on
probation and subsequently terminated because she complained to her paralegal
supervisor, Judith Nave, about Nave’s alleged discriminatory practice of assigning
preferential work projects to white paralegals. On appeal, Diamond argues the
district court erred in finding that she had not engaged in activity protected from
employer retaliation when she complained to Nave about the alleged
discrimination.
We review a district court order granting summary judgment de novo,
“applying the same legal standards as the district court, and viewing all facts and
reasonable inferences therefrom in the light most favorable to the non-moving
party.” Houston v. Williams, 547 F.3d 1357, 1361 (11th Cir. 2008). Summary
judgment requires the movant to show 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). The nonmoving party cannot create a genuine issue of material fact
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through speculation or conjecture. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986).
“To establish a claim of retaliation under Title VII or section 1981, a
plaintiff must prove that [she] engaged in statutorily protected activity, [she]
suffered a materially adverse action, and there was some causal relationship
between the two events.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1277 (11th Cir. 2008) (citation omitted). A plaintiff engages in statutorily
protected activity when she opposes an employment practice that she has a good
faith, reasonable basis to believe is unlawful. Butler v. Ala. Dep’t of Transp., 536
F.3d 1209, 1213 (11th Cir. 2008) (citation and quotation omitted). “A plaintiff
must not only show that [s]he subjectively (that is, in good faith) believed that
[her] employer was engaged in unlawful employment practices, but also that [her]
belief was objectively reasonable in light of the facts and record presented.” Id.(citation and quotation omitted). The reasonableness of a plaintiff’s belief that her
employer “engaged in an unlawful employment practice must be measured against
existing substantive law.” Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th
Cir. 2010) (citation omitted).
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To establish a prima facie case of racial discrimination under Title VII or
§ 1981,1 a plaintiff must show that “(1) [she] belongs to a racial minority; (2) [she]
was subjected to adverse job action; (3) [her] employer treated similarly situated
employees outside [her] classification more favorably; and (4) [she] was qualified
to do the job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citations
omitted). Diamond argues that she reasonably believed Nave had violated Title
VII and § 1981 by distributing billable and otherwise desirable work projects to
white paralegals, while giving non-billable and problematic work projects to black
paralegals. In her deposition testimony, however, when asked whether Nave
assigned non-billable work to white paralegals, Diamond answered, “I don’t know
of the work that she assigned to white paralegals.” Diamond also conceded that
Nave could very well have assigned white paralegals non-billable and
“problematic” work. Without any knowledge of what work Nave assigned to
white paralegals, Diamond could not have reasonably believed that Nave
unlawfully discriminated against her by disproportionately distributing billable
and more desirable work to similarly situated white paralegals. Accordingly,
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“Title VII and § 1981 have the same requirements of proof and utilize the same
analytical framework.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.14 (11th Cir.
2011). Diamond’s briefs do not identify any other possible anti-discrimination laws MMM
might have violated through Nave’s distribution of work projects.
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Diamond’s deposition testimony indicates she did not have an objectively
reasonable belief that Nave was engaged in unlawful racial discrimination.
In addition to her deposition testimony, Diamond cites the affidavit of
Ludmilla Mikki Anglade, the other black paralegal at MMM under Nave’s
supervision, as establishing that her belief Nave discriminated against black
paralegals was objectively reasonable. Anglade states in the affidavit that “Nave
removed [Anglade] from work projects, on more than one occasion, and that [her]
projects were given to white Corporate Paralegals.” Anglade also states that she
received “large amounts of non-billable work from Ms. Nave, who controlled
workflow for the Corporate Paralegals.” Anglade does not, however, claim that
the work projects Nave took from her were billable or otherwise more desirable
than other work projects, nor does she claim that white paralegals did not receive
similar amounts of non-billable work from Nave. Nothing in Anglade’s affidavit
could give rise to an objectively reasonable belief that Nave engaged in unlawful
discrimination through the distribution of work projects.
Diamond also argues that regardless of whether her complaint to Nave
constituted protected activity, the district court erred in failing to consider that she
subsequently made a separate complaint about Nave’s alleged discrimination to
Vanessa Goggans, MMM’s human resources partner. The communication to
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Goggans, Diamond contends, was protected, such that MMM should be held liable
for retaliating against her for it. Assuming Diamond timely raised the issue of the
complaint to Goggans, which MMM disputes, the complaint to Goggans – just like
the complaint to Nave – is statutorily protected from employer retaliation only if
Diamond’s belief that she was complaining about unlawful discrimination was
objectively reasonable. While Diamond repeatedly claims that her complaint to
Goggans “was indisputably an expression of statutorily protected activity,” she
fails to identify any evidence that would give rise an objectively reasonable belief
that MMM had engaged in unlawful discrimination.
Accordingly, we find that the district court did not err in granting summary
judgment in favor of MMM on Diamond’s retaliation claim.
AFFIRMED.
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