Jean Eddy Debe v. State Farm Mutual Automobile Insurance Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 8, 2021
• Docket: 20-11331
• Status: Unpublished

Opinion

USCA11 Case: 20-11331 Date Filed: 06/08/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11331 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-04612-WMR

JEAN EDDY DEBE,

Plaintiff-Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(June 8, 2021)

Before NEWSOM, GRANT and MARCUS, Circuit Judges.

PER CURIAM:

Jean Eddy Debe, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of State Farm on his retaliatory harassment claim. On

appeal, Debe argues that the district court erred in granting summary judgment to USCA11 Case: 20-11331 Date Filed: 06/08/2021 Page: 2 of 9

State Farm on Debe’s retaliatory harassment claim because there were genuine

disputes of material fact concerning: (1) whether Debe faced materially adverse

employment actions and whether there was a causal connection between his

protected activities and the alleged materially adverse employment actions; and (2)

whether the legitimate, non-discriminatory reasons State Farm offered for the

challenged employment actions were pretextual. After thorough review, we affirm.

We review the grant of summary judgment de novo, applying the same legal

standards as the district court. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1263 (11th Cir. 2010). We will affirm if the evidence, viewed in the light

most favorable to the nonmovant, shows that no genuine issue of material fact exists

and that the movant is entitled to judgment as a matter of law. Id. at 1263–64. We

may affirm summary judgment on any ground supported by the record, even if the

district court relied on an incorrect ground or gave an incorrect reason. Id. at 1264.

Under the anti-retaliation provision in Title VII of the Civil Rights Act, an

employer may not retaliate against an employee because the employee “has opposed

any practice made an unlawful employment practice” or “has made a charge” about

an unlawful employment practice under Title VII. 42 U.S.C. § 2000e-3(a). When a

plaintiff relies on circumstantial rather than direct evidence for a retaliation claim,

we generally use the burden-shifting framework laid out in McDonnell Douglas.

Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).

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Under this framework, if the plaintiff presents a prima facie case, and the employer

presents a legitimate, nonretaliatory reason for its decision, the plaintiff must then

show that the employer’s proffered reason was pretextual. Id. To establish a prima

facie case of retaliation, the plaintiff may show that (1) he engaged in a statutorily

protected expression, (2) he suffered a materially adverse action, and (3) there was

a causal link between the adverse action and his protected expression. Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th Cir. 2001). A materially adverse

employment action is an action that “might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Burlington Northern & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted). Although Title VII

protects against forms of retaliation that produce an objective injury or harm, like a

reduction in pay, benefits, or responsibilities that would demonstrate an adverse

effect, it does not protect against “normal[] petty slights, minor annoyances, and

simple lack of good manners.” Id. at 67–68.

To prove a causal connection for a retaliation claim, a plaintiff need only

demonstrate “that the protected activity and the adverse action were not wholly

unrelated.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1180 n.30 (11th Cir.

2003) (quotation and emphasis omitted). This element is to be construed broadly.

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The

plaintiff must generally establish that the employer was actually aware of the

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protected expression at the time it took the adverse employment action. Raney v.

Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). One way the

plaintiff can establish that the adverse action and protected activity were not “wholly

unrelated” is by showing a close temporal proximity between the employer’s

discovery of the protected activity and the adverse action. Higdon v. Jackson, 393

F.3d 1211, 1220 (11th Cir. 2004). The temporal proximity must be “very close.”

Id. (quotation omitted). A three-to-four-month delay is too long, Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007), while a one-month gap may

satisfy the test, Donnellon v. Fruehauf Corp., 794 F.2d 598, 600-01 (11th Cir. 1986).

Yet, if the alleged retaliatory conduct occurred before the employee engaged

in protected activity, the two events cannot be causally connected. Cotton v. Cracker

Barrel Old Country Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006) (holding that

no causal link existed between the alleged retaliatory conduct and the plaintiff’s

complaint of harassment where the decision to decrease her post-holiday work hours

had been made and conveyed to her when she was hired); Drago v. Jenne, 453 F.3d

1301, 1308 (11th Cir. 2006) (holding that there was no causal link because the

employer contemplated demoting the plaintiff months before he complained that the

employer was interfering with his rights under the Family and Medical Leave Act).

We’ve cautioned, however, that establishing the elements of the McDonnell

Douglas framework is not the only way to survive summary judgment in an

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employment discrimination case. A plaintiff may present “a convincing mosaic” of

circumstantial evidence that raises a reasonable inference that the employer

intentionally discriminated against her. Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011) (quotation omitted).

Title VII also prohibits the creation of a hostile work environment or

harassment in retaliation for an employee’s protected activity. Monaghan v.

Worldpay U.S. Inc., 955 F.3d 855, 861 (11th Cir. 2020). We analyze retaliatory

hostile work environment or retaliatory harassment claims like retaliation claims,

and ask whether the conduct complained of “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Id. at 862–63

(holding that Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012), was not binding to

the extent it stated a different standard) (quotation omitted). In Monaghan, a

retaliatory harassment case, we held that threats of termination and physical violence

would have dissuaded a reasonable worker from bringing complaint. Id.

First, we are unpersuaded by Debe’s claim that the district court erred in

granting summary judgment to State Farm after concluding that no genuine issue of

material fact existed as to Debe’s prima facie showing of retaliatory harassment.1

For starters, the district court did not err in determining, on the summary judgment

1 We note that because the district court articulated the correct standard from Monaghan for materially adverse employment actions in retaliatory harassment claims -- even though its orders predated Monaghan -- we need not remand for the district court to apply the correct standard. 5 USCA11 Case: 20-11331 Date Filed: 06/08/2021 Page: 6 of 9

record, that Debe had not faced any materially adverse employment actions. As the

record reveals, the district court expressly considered each alleged employment

action -- i.e., “unjustified coaching, increased scrutiny, unfounded discipline, file

padding of a previously unblemished file and Coaching Tracker [a platform to store

notes about employee performance], an unwanted schedule change, and a drop

memorandum [a list of alleged performance deficits]” -- and concluded that they did

not result in objective harm, whether viewed individually or together, because there

was no evidence of a reduction in pay, benefits, or responsibilities that would

demonstrate an adverse effect. The district court did not err in this conclusion.

As for the August 2017 drop memorandum, Debe testified that he did not

know whether any hiring manager viewed it, let alone whether his supervisor, Kim

Miller, directly contacted any hiring managers about it. Indeed, Miller testified that

the drop memorandum never even became part of an employee’s personnel file.

Thus, there was no evidence that the drop memorandum had any actual impact on

Debe’s terms and conditions of employment or his opportunities for promotion. As

for the testimony from Debe’s peer, Terry Washington, that Debe’s “brand” at State

Farm had worsened from knowledgeable and dependable to absent and not receptive

to feedback, there similarly was no evidence that this perceived change in Debe’s

brand caused him any objective injury or harm, like a reduction in pay, benefits, or

responsibilities. The alleged negative feedback, unjustified coaching, and placement

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on performance management also did not constitute materially adverse actions, since

Debe again offered nothing to suggest that they caused him an objective injury or

harm, like a reduction in pay, benefits, or responsibilities.

As for Debe’s schedule change, he said that Miller switched him sometime in

February 2017 to the morning shift for 3 months as part of a new 90-day rotation

system. There is no evidence to suggest that Debe’s temporary morning schedule

was anything other than part of cyclical rescheduling effort and did not ultimately

prohibit Debe from working the evening shift. As for his performance ratings, the

midyear performance rating Miller gave Debe in August 2017 was the same rating

given to Debe by the supervisors who preceded and followed Miller. As for whether

Debe received a lower increase in salary due to his performance rating and schedule

change, Debe received a larger merit-based salary increase under Miller’s

supervision, 2.4%, than he did under his previous supervisor, 2%. As for whether

Debe lost out on the pay differential for working the evening shift due to his schedule

change or whether his merits raises were lessened by the alleged adverse

employment actions, the record reflects that he worked the evening shift in 2017,

received the 10% pay differential for working the evening shift, and received a

higher salary in 2018 after Miller’s supervision. As a result, there was nothing to

indicate that either the schedule change or the performance rating resulted in any

objective injury or harm, like a reduction in pay, benefits, or responsibilities.

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Moreover, even if Debe had introduced evidence of a materially adverse

action, there was no genuine issue of material fact about the lack of a causal

connection between Debe’s protected activities and the alleged materially adverse

actions. Notably, nothing in the record indicates that Miller was made aware of

Debe’s December 2016 internal complaint until after Debe had been transitioned to

a new supervisor. As for the January 2017 meeting between Miller, Debe and a

manager to address Debe’s and Miller’s issues, Miller’s deposition and the related

Coaching Tracker entry show that Debe’s internal complaint was not mentioned at

that meeting. Debe never testified otherwise, instead admitting that he did not know

if or when Miller became aware of his complaint. And while emails in the record

reflect that Miller had contacted the human resources department (“HR”) about

issues with Debe, Miller’s conversation with HR predated Debe’s internal complaint

by several weeks, and there was no evidence that Miller ever received Debe’s

complaint. See, e.g., Cotton, 434 F.3d at 1233 (holding that if alleged retaliatory

conduct occurred before the employee engaged in protected activity, the two events

cannot be causally connected). Thus, the record does not indicate that Miller was

aware of Debe’s internal complaint for purposes of a causal connection.

As for the other alleged retaliatory conduct that occurred before Debe’s

December 2016 internal complaint, again the record does not support a causal

connection between his complaint and Miller’s actions. Debe testified that Miller’s

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retaliatory conduct began early in their relationship, in July or August 2016, well

before Debe filed his internal complaint in December 2016. See id. Moreover, Debe

was placed on performance management and on a drop memorandum before Debe

filed his internal complaint. As for whether the retaliatory conduct escalated after

he filed his internal complaint, Debe testified that nothing changed with respect to

Miller’s treatment of him. Further, the lack of close temporal proximity between

Debe’s December 2016 internal complaint and Debe’s temporary schedule change

in February 2017 and the August 2017 drop memorandum do not support an

inference of causal connection. Higdon, 393 F.3d at 1220; Thomas, 506 F.3d at

1364. Thus, there is no evidence to support a causal connection between Debe’s

protected activities and alleged materially adverse actions.

For these reasons, the district court did not err in concluding that there were

no genuine disputes of material fact concerning the second and third prongs of a

prima facie case of retaliation under of the McDonnell-Douglas framework. Absent

a prima facie showing of retaliation, for purposes of summary judgment, we need

not reach Debe’s arguments about whether there was any genuine issue of material

fact as to whether State Farm’s legitimate, non-discriminatory reasons for the alleged

employment actions were pretextual. Accordingly, we affirm the district court’s

grant of summary judgment in favor of State Farm.

AFFIRMED.