Case: 18-12737 Date Filed: 06/13/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12737 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-01099-VMC-TGW
RICHARD CORNELL,
Plaintiff-Appellant,
versus
MEGAN J. BRENNAN, POST MASTER GENERAL, UNITED STATES POSTAL SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 13, 2019)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM: Case: 18-12737 Date Filed: 06/13/2019 Page: 2 of 9
Richard Cornell appeals the grant of summary judgment in favor of his
former employer, the United States Postal Service (USPS), in his action for gender
discrimination and gender-based hostile work environment under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16. Cornell contends the
district court erred in granting summary judgment in favor of the USPS on both his
gender discrimination and gender-based hostile work environment claims
revolving around the application of the USPS’s uniform policy. After review,1 we
affirm.
I. BACKGROUND
Cornell’s allegations relevant to the appeal are as follows. From 2012 to
2014, the USPS maintained strict rules and regulations regarding uniforms for both
male and female employees. During this period, it required Cornell to wear his
uniform at all times, and it threatened him with discipline if he were to fail to
comply. During this same period, however, it allowed four female employees to
not wear their uniforms at all times, and it did not discipline or warn them about
their failure to comply with the rules. One of the female employees, Anh Tran,
1 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 appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)).
2 Case: 18-12737 Date Filed: 06/13/2019 Page: 3 of 9
was similarly situated to Cornell. On several occasions he complained to
supervisors about certain females violating the uniform policy, but they told him
that he had to wear his uniform, and did nothing about the females. Cornell
alleged this conduct resulted in him being discriminated against based on his
gender and created a hostile work environment, both in violation of Title VII.
II. DISCUSSION
A. Discrimination
We review discrimination cases involving circumstantial evidence under the
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Jefferson v. Sewon Am. Inc., 891 F.3d 911, 921-22 (11th Cir. 2018).
Under this framework, the plaintiff is first required to establish a prima facie case
of discrimination. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010). To establish a prima facie discrimination claim, the plaintiff
must show, among other things, that he suffered an adverse employment action and
that he was treated less favorably than a similarly-situated individual outside his
protected class. Maynard v. Bd. of Regents of the Div. of Univs. of the Fla. Dep’t
of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).
The district court did not err in granting summary judgment on Cornell’s
gender discrimination claim in favor of the USPS because Cornell failed to
establish that he suffered an adverse employment action and that his identified
3 Case: 18-12737 Date Filed: 06/13/2019 Page: 4 of 9
comparator was similarly situated in all material respects. First, Cornell never
suffered from an adverse employment action. See Davis v. Town of Lake Park,
Fla., 245 F.3d 1232, 1238-39 (11th Cir. 2001) (stating to prove an adverse
employment action an employee has to show a serious and material change in the
terms, conditions, or privileges of his employment, and not all conduct by an
employer negatively affecting an employee constitutes adverse employment action
in a discrimination context). Cornell testified in his deposition that he followed the
rule that required him and other employees who were window qualified to wear
their USPS uniform at all times and that he did not mind the rule. Because Cornell
followed the rule, he was never disciplined for failing to follow the rule.
Furthermore, Cornell’s argument that he lost prestige as a result of being
required to wear a uniform, and thus, suffered an adverse employment action lacks
merit because it involves only his subjective beliefs. See id. at 1239 (“[T]he
employee’s subjective view of the significance and adversity of the employer’s
action is not controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.”). Without more, such as a
demotion, change in title, change in pay, change in work hours, or a transfer,
Cornell’s perceived loss of prestige is insufficient to establish that he suffered an
adverse employment action. See id. at 1242 (“[A]n employee who receives
criticism or a negative evaluation may lose self-esteem and conceivably may suffer
4 Case: 18-12737 Date Filed: 06/13/2019 Page: 5 of 9
a loss of prestige in the eyes of others who come to be aware of the evaluation.
But the protections of Title VII simply do not extend to everything that makes an
employee unhappy,” and thus, “will rarely—without more—establish the adverse
action necessary to pursue a claim under Title VII’s anti-discrimination clause”
(quotations omitted)); Doe v. Dekalb County School Dist., 145 F.3d 1441, 1452
n.19 (11th Cir. 1998) (noting, in determining whether a defendant suffered from an
adverse employment action in the American with Disabilities Act context, that
“loss of prestige, either within an organization or with regard to the general public,
is an objective factor that a court should consider as part of a reasonable person
test”).
Second, Cornell failed to show that he and Tran were similarly situated in all
material respects. See Lewis v.
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Case: 18-12737 Date Filed: 06/13/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12737 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-01099-VMC-TGW
RICHARD CORNELL,
Plaintiff-Appellant,
versus
MEGAN J. BRENNAN, POST MASTER GENERAL, UNITED STATES POSTAL SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 13, 2019)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM: Case: 18-12737 Date Filed: 06/13/2019 Page: 2 of 9
Richard Cornell appeals the grant of summary judgment in favor of his
former employer, the United States Postal Service (USPS), in his action for gender
discrimination and gender-based hostile work environment under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16. Cornell contends the
district court erred in granting summary judgment in favor of the USPS on both his
gender discrimination and gender-based hostile work environment claims
revolving around the application of the USPS’s uniform policy. After review,1 we
affirm.
I. BACKGROUND
Cornell’s allegations relevant to the appeal are as follows. From 2012 to
2014, the USPS maintained strict rules and regulations regarding uniforms for both
male and female employees. During this period, it required Cornell to wear his
uniform at all times, and it threatened him with discipline if he were to fail to
comply. During this same period, however, it allowed four female employees to
not wear their uniforms at all times, and it did not discipline or warn them about
their failure to comply with the rules. One of the female employees, Anh Tran,
1 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 appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)).
2 Case: 18-12737 Date Filed: 06/13/2019 Page: 3 of 9
was similarly situated to Cornell. On several occasions he complained to
supervisors about certain females violating the uniform policy, but they told him
that he had to wear his uniform, and did nothing about the females. Cornell
alleged this conduct resulted in him being discriminated against based on his
gender and created a hostile work environment, both in violation of Title VII.
II. DISCUSSION
A. Discrimination
We review discrimination cases involving circumstantial evidence under the
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Jefferson v. Sewon Am. Inc., 891 F.3d 911, 921-22 (11th Cir. 2018).
Under this framework, the plaintiff is first required to establish a prima facie case
of discrimination. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010). To establish a prima facie discrimination claim, the plaintiff
must show, among other things, that he suffered an adverse employment action and
that he was treated less favorably than a similarly-situated individual outside his
protected class. Maynard v. Bd. of Regents of the Div. of Univs. of the Fla. Dep’t
of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).
The district court did not err in granting summary judgment on Cornell’s
gender discrimination claim in favor of the USPS because Cornell failed to
establish that he suffered an adverse employment action and that his identified
3 Case: 18-12737 Date Filed: 06/13/2019 Page: 4 of 9
comparator was similarly situated in all material respects. First, Cornell never
suffered from an adverse employment action. See Davis v. Town of Lake Park,
Fla., 245 F.3d 1232, 1238-39 (11th Cir. 2001) (stating to prove an adverse
employment action an employee has to show a serious and material change in the
terms, conditions, or privileges of his employment, and not all conduct by an
employer negatively affecting an employee constitutes adverse employment action
in a discrimination context). Cornell testified in his deposition that he followed the
rule that required him and other employees who were window qualified to wear
their USPS uniform at all times and that he did not mind the rule. Because Cornell
followed the rule, he was never disciplined for failing to follow the rule.
Furthermore, Cornell’s argument that he lost prestige as a result of being
required to wear a uniform, and thus, suffered an adverse employment action lacks
merit because it involves only his subjective beliefs. See id. at 1239 (“[T]he
employee’s subjective view of the significance and adversity of the employer’s
action is not controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.”). Without more, such as a
demotion, change in title, change in pay, change in work hours, or a transfer,
Cornell’s perceived loss of prestige is insufficient to establish that he suffered an
adverse employment action. See id. at 1242 (“[A]n employee who receives
criticism or a negative evaluation may lose self-esteem and conceivably may suffer
4 Case: 18-12737 Date Filed: 06/13/2019 Page: 5 of 9
a loss of prestige in the eyes of others who come to be aware of the evaluation.
But the protections of Title VII simply do not extend to everything that makes an
employee unhappy,” and thus, “will rarely—without more—establish the adverse
action necessary to pursue a claim under Title VII’s anti-discrimination clause”
(quotations omitted)); Doe v. Dekalb County School Dist., 145 F.3d 1441, 1452
n.19 (11th Cir. 1998) (noting, in determining whether a defendant suffered from an
adverse employment action in the American with Disabilities Act context, that
“loss of prestige, either within an organization or with regard to the general public,
is an objective factor that a court should consider as part of a reasonable person
test”).
Second, Cornell failed to show that he and Tran were similarly situated in all
material respects. See Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir.
2019) (en banc) (holding a comparator is an employee “similarly situated in all
material respects”). To the contrary, they were not engaged in the same conduct
because Cornell followed the rule that required him to wear his uniform at all
times, while, viewing the facts most favorable to Cornell, Tran did not. See id. at
1227 (explaining a valid comparator ordinarily “will have engaged in the same
basic conduct (or misconduct) as the plaintiff”). Thus, Cornell failed to put forth a
prima facie case of discrimination, and the district court did not err in granting
summary judgment.
5 Case: 18-12737 Date Filed: 06/13/2019 Page: 6 of 9
B. Hostile Work Environment
To establish a prima facie case of a hostile work environment, a plaintiff
may show that: (1) he belongs to a protected group; (2) he has been subject to
unwelcome harassment; (3) the harassment was based on a protected characteristic;
(4) the harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive working
environment; and (5) the employer is responsible for such environment under a
theory of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002).
The requirement that the harassment be “severe or pervasive” 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. (quotations omitted). Ultimately, Title VII is not a general civility
code; “ordinary tribulations of the workplace, such as sporadic use of abusive
language, gender-related jokes, and occasional teasing” cannot form the basis of a
claim for actionable harassment or hostile work environment. Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). Instead, “conduct must be extreme to
amount to a change in the terms and conditions of employment.” Id.
6 Case: 18-12737 Date Filed: 06/13/2019 Page: 7 of 9
The district court did not err in granting summary judgment to the USPS on
Cornell’s hostile work environment claim. While Cornell subjectively believed
that he experienced a hostile work environment, the district court did not err in
concluding that his work environment was not objectively hostile. This is because
no evidence, other than Cornell’s own subjective beliefs, showed that: (1) his job
performance suffered; (2) USPS employees, other than Cornell, were humiliated
by being required to wear a uniform; or (3) Cornell was physically threatened.
Although USPS officials may have threatened to discipline Cornell, the threatened
discipline was for failing to purchase a uniform with USPS funds and failing to
accept a uniform that was purchased with USPS funds. He was not disciplined for
refusing to wear the uniform, which Cornell stated he had no problem doing.
The conduct alleged by Cornell does not rise to the level of severe or
pervasive conduct as discussed in our prior precedents. Compare Jones v. UPS
Ground Freight, 683 F.3d 1283, 1302-04 (11th Cir. 2012) (concluding that seven
incidents of racist acts over a year, some of which—e.g., two incidents involving
the placement of banana peels on the plaintiff’s truck, co-workers wearing
Confederate clothing, and a threatening confrontation with several co-workers—
occurred within a two-week period near the end of the plaintiff’s employment,
collectively raised a jury question as to whether he endured a hostile work
environment); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811-14
7 Case: 18-12737 Date Filed: 06/13/2019 Page: 8 of 9
(11th Cir. 2010) (coworkers’ frequent use of gender-specific derogatory comments,
together with an incident where a coworker displayed a pornographic image of a
woman on his computer, held to create a genuine issue of material fact regarding
hostile work environment); Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1248 (11th
Cir. 2004) (holding that supervisor’s propositioning of plaintiff for sex, following
her into the restroom, and repeatedly attempting to touch her breasts, place his
hands down her pants, and pull off her pants was enough evidence to create a
genuine issue of material fact regarding severe or pervasive harassment); with
McCann v. Tillman, 526 F.3d 1370, 1378-79 (11th Cir. 2008) (instances of racially
derogatory language over a period of two-and-a-half years were “too sporadic and
isolated” to qualify as severe or pervasive); Webb-Edwards v. Orange Cnty.
Sheriff’s Ofc., 525 F.3d 1013, 1027-28 (11th Cir. 2008) (supervisor’s comments
that female plaintiff “looked hot” and “should wear tighter clothing, and that
women who dye their hair have issues at home, were taunting and boorish” but not
hostile or abusive); Mendoza v. Borden, Inc., 195 F.3d 1238, 1247-49 (11th Cir.
1999) (en banc) (supervisor that “constantly” followed the plaintiff and stared at
her, twice made a “sniffing motion” in the plaintiff’s groin area, rubbed his hip
against the plaintiff’s hip while touching her shoulder and smiling, and once told
the plaintiff, “I’m getting fired up” had not engaged in severe or pervasive
8 Case: 18-12737 Date Filed: 06/13/2019 Page: 9 of 9
conduct). Accordingly, the district court did not err in granting summary judgment
on Cornell’s hostile work environment claim.
AFFIRMED.