Dr. Katherine Murphy v. City of Aventura

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 18, 2010
No. 09-13419 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-20603-CV-JEM
DR. KATHERINE MURPHY,
Plaintiff-Appellant,
versus
CITY OF AVENTURA,
a municipality governed under the
laws of the State of Florida,
AVENTURA CITY OF EXCELLENCE SCHOOL,
a public school and agent of the
City of Aventura,
CHARTER SCHOOLS USA, INC.
a Florida corporation,
CHARTER SCHOOLS USA AT AVENTURA, LLC,
a Florida limited liability company,
ERIC SOROKA,
in his official and an individual capacities,
TERESA SOROKA,
an individual, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 18, 2010)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Katherine Murphy appeals the summary judgment in favor of her former
employer, the City of Aventura, and against her complaint of sexual harassment
and retaliation in violation of Title VII of the Civil Rights Act of 1991, 42 U.S.C.
§§ 2000e-2(a), 2000e-3(a), and the dismissal without prejudice of her claims under
state law. We affirm.
In April 2003, the City hired Murphy as principal of the Excellence School
in Miami, Florida. For the next three years and eight months, Murphy was
supervised by Eric Soroka, the City Manager. Soroka terminated Murphy in
December 2006.
Murphy filed a complaint against Soroka, the City, its clerk, Teresa Soroka,
the Aventura City of Excellence School and its business manager, Nicole Monroe,
and the Charter School companies. Murphy complained of sexual harassment and
retaliation in violation of Title VII, and Murphy asserted several claims under state
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law.
Murphy described eleven different incidents in which Soroka allegedly
harassed her about her work performance: (1) in April 2003, after Murphy offered
to let a city commissioner teach some lessons at the school, Soroka called Murphy
a “dumb shit,” prohibited her from inviting commissioners to the school, and told
her that “[i]t’s fucking inappropriate for you to talk to them”; (2) also in April,
after Murphy talked to Elaine Adler, the President of the Aventura Marketing
Council, Soroka instructed Murphy to cease contact with Adler and told Murphy
that she was a “stupid fuck” who failed to “get [the] message that [she was] not to
do this”; (3) in May 2003, after Murphy talked to a second city commissioner,
Soroka told Murphy that “[y]ou directors do not talk” and called Murphy a “stupid
shit” and a “dumb fuck”; (4) Soroka screamed and yelled at Murphy when a parent
complained about the school; (5) Soroka “would call [Murphy] if there was an
event at the school . . . and two commissioners were in the same building at the
same time and call . . . her words like you slut” or “you goddamn fuck-up and ask
her, can’t you get this?”; (6) Soroka called Murphy a “dumb fuck” for the way she
had addressed requests by parents for more input at board meetings and in the
school; (7) Soroka would appear at a school advisory meeting in a “bad” mood and
insult Murphy by saying things like “you dumb shit, you stupid fuck, you fucked
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up, how come you can’t do this, why can’t you control staff, an idiot could take
care of this, . . . you have the mindlessness of a hooker”; (8) Soroka accused
Murphy of meeting commissioners for dinner, accused her of not learning her
lesson, called her a “dumb shit,” threatened to fire her, and warned her that if she
had lied about the assemblage being coincidental that she “was fucked”; (9) in
2005, Soroka called Murphy a “goddamn slut” after reading an article about her in
the newspaper that he had not approved; (10) while Murphy was conducting a
parent-teacher conference in the Spring of 2006, Soroka called and told Murphy
that she was a “stupid shit . . . you slut, how can you do this? . . . Don’t you
goddamn learn your lessons”; and (11) in the Summer of 2006, Soroka called
Murphy a “goddamn stupid fuck” after she refused to give student records to
Soroka’s wife.
Murphy described five incidents in which Soroka allegedly harassed her
about her personal life: (1) Soroka called Murphy about having dinner with Luz
Weinberg, a city commissioner in the midst of her second divorce, and Soroka said
the women looked like hookers; (2) after learning Murphy had gone to dinner with
Weinberg a second time, Soroka told Murphy that she looked like a “whore to be
with her, because . . . [Weinberg] looks like a slut as well, out when she’s working
on her second divorce”; (3) Soroka told Murphy that dining in a restaurant alone
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made her look like a “whore”; (4) Soroka ridiculed and used vulgar language with
Murphy after she, city commissioners, and the mayor attended a charity event for a
child who had been killed in Israel; and (5) Soroka also ridiculed Murphy about
attending a charity event for cystic fibrosis at which city commissioners and the
mayor were present. Murphy alleged that Soroka had called her a “stupid bitch,”
but Murphy did not explain where, when, or why the comment was made. Murphy
also alleged that, in June or July of 2003 after Soroka overheard a mother remark
that her buxom daughter could not wear a school uniform, Soroka stated in
Murphy’s presence, “[w]ouldn’t all women love to have that problem.”
All the defendants moved for summary judgment. The City argued that
Soroka did not sexually harass Murphy because the majority of Soroka’s remarks
were gender-neutral, and the other remarks were not sufficiently pervasive or
severe and did not interfere with Murphy’s job performance. The City also argued
that Soroka fired Murphy, not in retaliation, but because she had violated the
school enrollment policy by admitting former student Jake Norman before other
children on the waiting list; she had accepted money from Norman’s parents to
expedite his admission; and she had misappropriated school funds.
The district court granted summary judgment in favor of the City and sua
sponte dismissed without prejudice Murphy’s complaints that the Charter School
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companies, the Sorokas, and Monroe had violated state law. The district court
ruled that Murphy failed to establish that she was subject to a hostile work
environment. The district court found that nine of the eighteen remarks described
by Murphy constituted “generalized profanity and insults.” The district court also
found that Murphy failed to establish that Soroka “singled out females as the
targets for” the profanity based on statements by Judy Appelgren, Soroka’s
assistant, and Ginger Kimnick that Soroka routinely and indiscriminately cursed at
male and female employees. The district court found that the remaining nine
remarks, although sex-based and offensive, did not rise to the level of sexual
harassment because they were of “limited frequency,” having occurred over two
years and eight months; were not severe; were not physically threatening and were
not humiliating; and did not “unreasonably interfere” with Murphy’s work
performance. The district court also ruled that Murphy failed to establish a prima
facie case of retaliation. The district court determined that Murphy failed to
establish that she had complained about gender-based discrimination and, in the
alternative, she lacked an objectively reasonable belief that she was subject to a
hostile work environment based on sexual harassment.
Murphy argues that Soroka’s remarks, particularly his gender-specific
remarks, created a debatable issue about whether she was a victim of sexual
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harassment, but we disagree. The district court was entitled to conclude that
Soroka’s remarks that Murphy was a “dumb shit,” “stupid fuck,” and “dumb fuck,”
fell “under the rubric of general vulgarity that Title VII does not regulate.” Reeves
v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 n.4 (11th Cir. 2010) (en
banc). The record establishes that Soroka also employed these vulgarities to
criticize male employees. Although Soroka’s use of terms like “slut,” “whore,”
“bitch,” “hooker,” and his remark about a young student’s bust size were no doubt
degrading and sex based, Soroka’s nine remarks, made over the course of over
three years, were neither severe nor pervasive. Murphy also failed to produce
evidence that Soroka’s conduct unreasonably interfered with her work
performance. Soroka rated Murphy’s job performance as excellent or exemplary,
and in October 2006, Soroka awarded Murphy a raise and a written commendation.
Murphy argues that Soroka’s remarks caused her to suffer nightmares, depression,
and anxiety, but Murphy testified that these symptoms did not surface until a
month after she was terminated. The district court correctly granted summary
judgment in favor of the City and against Murphy’s complaint of sexual
harassment.
Murphy argues that her complaints about Soroka’s comments constituted
protected activity that supports a claim of retaliation, but again we disagree.
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Murphy failed to provide any evidence that she engaged in statutorily protected
activity. “A complaint about an employment practice constitutes protected
opposition only if the individual explicitly or implicitly communicates a belief that
the practice constitutes unlawful employment discrimination.” EEOC Compl.
Man. (CCH) §§ 8-II-B(2) (2006); see Crawford v. Metro. Gov’t, 129 S. Ct. 846,
851 (2009) (using the EEOC manual in interpreting the opposition clause of the
antiretaliation statute). Murphy testified that she asked Soroka to stop bullying her
and that she complained to a former supervisor, Soroka’s assistant, and a city
commissioner that Soroka had used “vulgar, inappropriate language,” and engaged
in “bullying, yelling, [and] screaming.” Murphy failed to report Soroka’s conduct,
formally or informally, to her employer, and Murphy acknowledged that she did
not complain to Soroka’s assistant or the city commissioner that Soroka’s conduct
was sexually hostile or sexually harassing. The district court correctly entered
summary judgment against Murphy’s complaint of retaliation.
Murphy lastly argues that the dismissal without prejudice of her state law
claims “unfairly works an injustice . . . by requiring her to begin anew in state
court,” but the district court did not abuse its discretion by dismissing these claims.
There was no reason for the district court to exercise supplemental jurisdiction over
the state law claims after the court dismissed the federal claims over which it had
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original jurisdiction. We, in fact, “encourage[ ] district courts to dismiss any
remaining state claims when, as here, the federal claims have been dismissed prior
to trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004).
We AFFIRM the summary judgment in favor of the City of Aventura and
the dismissal without prejudice of Murphy’s state law claims.
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