Harroll Ingram v. Secretary of the Army

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 23, 2018
• Docket: 17-14945
• Status: Unpublished

Opinion

Case: 17-14945 Date Filed: 07/23/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14945 Non-Argument Calendar ________________________

D.C. Docket No. 6:16-cv-00150-RBD-TBS

HARROLL INGRAM,

Plaintiff-Appellant,

versus

SECRETARY OF THE ARMY,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(July 23, 2018)

Before MARCUS, WILSON and JORDAN, Circuit Judges. PER CURIAM: Harroll Ingram, an African American male, appeals the district court’s grant

of summary judgment in favor of the Secretary of the Army (“Secretary”) in his

employment discrimination lawsuit, filed pursuant to Title VII of the Civil Rights Case: 17-14945 Date Filed: 07/23/2018 Page: 2 of 10

Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) (“Title VII”),

alleging disparate treatment, a hostile work environment, and retaliation. Ingram’s

claims concern his December 2010 reassignment from his role as lead engineer and

test director on the Bradley Advanced Training System (“BATS”) project and the

Bradley Conduct of Fire Trainer Enhanced (“COFT-E”) project to the Bradley Fire

Support Team (“BFIST”), a position he said was non-existent because it lacked

funding. Ingram alleged that Robert Briar, a white contract employee, sent

harassing e-mails and engaged in other disrespectful conduct on the basis of

Ingram’s race, which his supervisors -- particularly, John Collins, Chris Dunlap,

and Wafa Makhlouf -- did nothing about. The district court granted summary

judgment in favor of the Secretary on all of Ingram’s claims.

On appeal, Ingram argues that the district court erred in granting summary

judgment: (1) on his disparate treatment claim because he showed that the

Secretary’s proffered reason for his reassignment to BFIST was pretext; (2) on his

hostile work environment claim because he introduced sufficient evidence to

demonstrate a hostile work environment on account of his race; and (3) sua sponte

on his retaliation claim because the Secretary failed to argue that he did not engage

in protected conduct in its initial motion or assert a legitimate, non-retaliatory

reason for his reassignment. After thorough review, we affirm.

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We review de novo a district court’s grant of summary judgment, viewing

all evidence and reasonable factual inferences drawn from it in the light most

favorable to the nonmoving party. Crawford v. Carroll, 529 F.3d 961, 964 (11th

Cir. 2008). Summary judgment is properly granted only if “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). Courts may not make credibility determinations or

weigh the evidence presented on summary judgment. Frederick v. Sprint/United

Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001).

First, we are unpersuaded that the district court erroneously granted

summary judgment on Ingram’s disparate treatment claim. Under Title VII, an

employer may not discharge, or otherwise discriminate against, any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of his race. 42 U.S.C. § 2000e-2(a)(1). Disparate treatment can include a

tangible employment action, like a firing or demotion. Reeves v. C.H. Robinson

Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc). If only

circumstantial evidence of discrimination, and no direct evidence, is offered, we

apply McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Holland v. Gee,

677 F.3d 1047, 1055 (11th Cir. 2012). Under its framework, a plaintiff first must

establish a prima facie case of discrimination that creates a presumption that the

employer unlawfully discriminated against him. Flowers v. Troup Cty., 803 F.3d

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1327, 1336 (11th Cir. 2015). “At all times, the plaintiff retains the ultimate burden

of persuading the court that []he has been the victim of intentional discrimination.”

Id. (quotation omitted). Once a prima facie case is made, the burden of production

shifts to the employer to articulate a “legitimate, non-discriminatory reason” for

the challenged employment action. Id. (quotation omitted). If the employer

satisfies this burden, the burden shifts back to the plaintiff to show that the

proffered reason is merely a pretext for unlawful discrimination. Id.

In showing pretext, the plaintiff may rely on the same evidence he relied on

in making his prima facie case, although merely quarreling with the reason is

insufficient. Wilson v. B/E Aero, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). The

plaintiff must show that the employer’s proffered reason for the employment

decision was not the true reason, and can do so by pointing to its “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions.” Brooks v.

Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162-63 (11th Cir. 2006)

(quotation omitted). But a reason is still not a pretext for discrimination “unless it

is shown both that the reason was false, and that discrimination was the real

reason.” Id. Further, the truth of the proffered reason is not relevant, but rather,

the inquiry is whether the plaintiff’s supervisors were motivated by their belief that

the proffered reason was true. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,

1470 (11th Cir. 1991). We do not consider whether the employer’s employment

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decision was wise or accurate, but only whether it was motivated by racial animus.

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).

Here, even if we assume, as the district court did, that Ingram established a

prima facie case of disparate treatment based on race, the court correctly granted

summary judgment on Ingram’s disparate treatment claim. As the record reveals,

Ingram failed to satisfy his burden to demonstrate that the Secretary’s reason for

reassigning him was pretext. Although Ingram asserted that racial discrimination

was the basis for his reassignment to BFIST, he presented no evidence other than

his unsupported assertions and the races of the parties that this was the true reason.

Even viewed in the light most favorable to Ingram, the undisputed evidence in the

record demonstrates that Ingram and Briar were engaged in an ongoing and

unresolved personal conflict when Ingram was reassigned. Although the conflict

between Ingram and Briar likely resulted in an unpleasant work environment, it

does not demonstrate that racial animus motivated the decision to reassign Ingram

to BFIST. See Brooks, 446 F.3d at 1162-63; Elrod, 939 F.2d at 1470.

Further, none of Ingram’s arguments on appeal support his claim that he

established pretext. Whether the reassignment to BFIST would actually have

separated Ingram from Briar goes to the wisdom of the decision to reassign Ingram

to that position, not whether his supervisors believed he needed to be removed

from the COFT-E team based on the unresolvable conflict. See Alvarez, 610 F.3d

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at 1266; Elrod, 939 F.2d at 1470. Likewise, Ingram’s arguments about the

feasibility of the BFIST position in light of its lack of funding and whether his

supervisor Dunlap discussed removing Ingram from the team with other colleagues

also do not challenge his supervisors’ belief that he needed to be removed from

COFT-E. See Alvarez, 610 F.3d at 1266; Elrod, 939 F.2d at 1470. As for whether

Briar was disciplined for his part in the conflict, the only evidence in the record

suggests that Dunlap counseled him, but lacked the authority to otherwise punish

or fire Briar because he was a contractor. Finally, Ingram failed to present any

evidence in support of his claim that the Secretary had a history of not promoting

African American engineers or of punishing African American employees for

complaining of harassment by white employees.

Similarly, we find no merit to Ingram’s argument that the district court erred

in granting summary judgment on his hostile work environment claim. Disparate

treatment can include “a hostile work environment that changes the terms and

conditions of employment, even though the employee is not discharged, demoted,

or reassigned.” Reeves, 594 F.3d at 807 (quotation omitted). It is a bedrock

principle that not all objectionable conduct or language constitutes discrimination

under Title VII. Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir.

2012). “Innocuous statements or conduct, or boorish ones” that do not relate to the

race of the actor or of the plaintiff are not counted. Id. (quotation omitted).

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To establish a prima facie case of a hostile work environment, a party must

show that (1) he is a member of a protected group; (2) who has been subjected to

unwelcome harassment; (3) based on a protected characteristic; (4) that was

“sufficiently severe or pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive working environment”; and (5) that his

employer is vicariously or directly liable for the environment. Miller v. Kenworth

of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The requirement of “severe

or pervasive” harassment contains an objective and a subjective component. Id. at

1276. Thus, to be actionable, this behavior must result in both an environment that

a reasonable person would find hostile or abusive and an environment that the

victim subjectively perceives to be abusive. Id. In assessing the objective severity

of the harassment, we consider: “(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 job performance.” Id.

In this case, Ingram failed to demonstrate that he was subjected to

harassment on the basis of his race. See Miller, 277 F.3d at 1275. Although the e-

mails on which Ingram based his claim reveal that he had a contentious working

relationship with Briar, they do not suggest that the conflict was the result of racial

animus, much less that Ingram was subjected to a severe or pervasive environment

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of harassment based on his race that a reasonable person would find hostile or

abusive. See Miller, 277 F.3d at 1276. Indeed, Ingram testified he was not aware

of anyone -- Collins, Briar, Dunlap, or otherwise -- making racial comments or

other discriminatory remarks. And the record shows that Ingram did not mention

race to his supervisors Collins and Makhlouf until after the decision had been made

to reassign him to BFIST. The record also contradicts Ingram’s claim that he

received no support from the leadership because, following his complaints, he met

with supervisors and Briar was counseled. Thus, the district court properly granted

summary judgment on Ingram’s race-based hostile work environment claim.

Finally, we’re unpersuaded by Ingram’s argument that the district court

erred in sua sponte granting summary judgment on his retaliation claim. A district

court may grant summary judgment on a ground not raised by a party or sua

sponte, so long as the court gives notice and a reasonable time to respond. Fed. R.

Civ. P. 56(f)(2)-(3). “The notice requirement is not an unimportant technicality,

but a vital procedural safeguard subject to strict enforcement.” Ga. State Conf. of

the NAACP v. Fayette County Bd. of Comm’rs, 775 F.3d 1336, 1344 (11th Cir.

2015) (quotation omitted). However, failure to give notice can be harmless error if

a party is not deprived of the opportunity to present all facts or arguments that

would have precluded summary judgment. See Restigouche, Inc. v. Town of

Jupiter, 59 F.3d 1208, 1213 (11th Cir. 1995).

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Title VII prohibits an employer from retaliating against an employee

because the employee “opposed any practice” made unlawful by Title VII. 42

U.S.C. § 2000e-3(a). Accordingly, Title VII forbids retaliation against an

employee who reports race discrimination in the workplace. Crawford v. Metro.

Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 273 (2009). Absent direct

evidence of discrimination, we employ the McDonnell Douglas framework when

analyzing claims for retaliation. See Bryant v. Jones, 575 F.3d 1281, 1307 (11th

Cir. 2009). Under this framework, a plaintiff establishes a prima facie case of

retaliation by showing that he: (1) engaged in a statutorily protected activity; (2)

suffered an adverse employment action; and (3) established a causal link between

the protected activity and the adverse action. Holifield v. Reno, 115 F.3d 1555,

1566 (11th Cir.1997).

Here, even assuming the district court erred by failing to give Ingram proper

notice as to the grounds for granting summary judgment as to his retaliation claim,

this error was harmless. For starters, Ingram has failed to argue on appeal that he

would have included additional argument or evidence in support of this claim

given proper notice. See Restigouche, 59 F.3d at 1213. Moreover, on the full

record before us, the district court correctly determined that Ingram failed to

demonstrate that he engaged in a protected activity, and therefore, failed to

establish a prima facie case of retaliation. See Bryant, 575 F.3d at 1307-08.

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Although Title VII forbids retaliation against an employee reporting race

discrimination, see Crawford, 555 U.S. at 273, the undisputed facts in the record

reflect that, prior to his reassignment to BFIST, Ingram did not communicate his

belief that he was being subjected to race discrimination. The e-mails Ingram sent

to Collins, Dunlap, and Makhlouf reflect a work related conflict with Briar, but do

not suggest that Ingram conveyed any belief that the conflict was motivated by

racial animus. Additionally, Ingram testified that he did not mention race or race

discrimination until after the decision to reassign him to BFIST had already been

made, further indicating that he failed to communicate that he believed racial

animus was at issue.

In short, the district court correctly granted summary judgment in favor of

the Secretary, and we affirm.

AFFIRMED.