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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11378 Non-Argument Calendar ________________________
D.C. Docket No. 9:17-cv-80289-RLR
SIMONE HAMILTON,
Plaintiff-Appellant,
versus
SIKORSKY AIRCRAFT CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 25, 2019)
Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.
PER CURIAM: Case: 18-11378 Date Filed: 01/25/2019 Page: 2 of 18
Simone Hamilton appeals the district court’s grant of summary judgment to
Sikorsky Aircraft Corporation on her claims of wage discrimination in violation of
the Equal Pay Act, 29 U.S.C. § 206(d); race, gender, and national origin
discrimination in violation of the Florida Civil Rights Act, Fla. Stat. § 760.01(2),
and 42 U.S.C. § 1981; retaliation in violation of the EPA, the FCRA, and § 1981;
and breach of contract based on Executive Order 11246. We affirm.
I.
The district court deemed admitted portions of the statement of facts that
Sikorsky attached to its summary judgment motion because Hamilton did not
comply with a local rule requiring her to challenge each statement she disputed.
See S.D. Fla. L.R. 56.1(b) (“All material facts set forth in the movant’s statement
[of facts] . . . will be deemed admitted unless controverted by the opposing party’s
statement, provided that the Court finds that the movant’s statement is supported
by evidence in the record.”). Hamilton does not contend on appeal that the district
court abused its discretion by doing so. See Mann v. Taser Int’l, Inc., 588 F.3d
1291, 1302 (11th Cir. 2009) (“We give great deference to a district court’s
interpretation of its local rules and review a district court’s application of local
rules for an abuse of discretion.”) (quotation marks omitted). Because “[i]ssues
not raised on appeal are considered abandoned,” AT&T Broadband v. Tech
Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004), we will view the
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statements admitted by the district court as “the functional analog of an unopposed
motion for summary judgment,” Mann, 588 F.3d at 1303 (quotation marks
omitted). 1 Even so, we “must still review the movant’s citations to the record to
determine if there is, indeed, no genuine issue of material fact,” and we still draw
all reasonable inferences and review all evidence in the light most favorable to
Hamilton as the non-moving party on summary judgment. Id. at 1303.
II.
Hamilton is a black Jamaican female who worked as a software engineer
for Sikorsky from November 2007 until her termination on October 7, 2015. In
January 2015 Hamilton transitioned from a pure software engineer position to a
software supplier manager position as part of a new team that would, by late
February, be supervised by Susan Vandermeys. That team was based in Stratford,
Connecticut, but Hamilton worked remotely from Sikorsky’s West Palm Beach
facility, as she had done with her previous assignments.
1 Hamilton responds to Sikorsky’s waiver argument by noting that the district court did not completely strike her oppositional statement of facts and that therefore no “procedural default occur[ed].” What she apparently means by this is that “the district court only expressly rejected several of [her] oppositional statements and otherwise fully considered the oppositional statement as well as material filed in opposition to the Rule 56 motion.” She does not challenge the district court’s decision to do that (or its corollary decision to deem admitted certain of Sikorsky’s factual statements), and such an argument in her reply brief would come too late anyway. See United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[A]rguments raised for the first time in a reply brief are not properly before a reviewing court.”) (quotation marks omitted). In any event, Hamilton is correct that the district court deemed admitted only those statements by Sikorsky that Hamilton failed to dispute with relevant citations to the record. 3 Case: 18-11378 Date Filed: 01/25/2019 Page: 4 of 18
Hamilton was classified as an L7 labor grade for her entire time with
Sikorsky. Jefferson Slayden acted as her on-site administrative supervisor in West
Palm Beach and conducted her annual performance reviews with input from
Hamilton’s off-site team managers. Each year he recommended Hamilton for
merit pay increases, but he never backed her for a promotion to the next labor
grade. On January 30, 2015, soon after transitioning to the new team, Hamilton
sent an e-mail to Slayden , Slayden’s supervisor, and representatives from the
human resources department requesting a promotion. No one responded to the
request.
Hamilton raised the issue again during her annual performance review with
Slayden on March 11, 2015. Slayden told her that the time for promotion
recommendations had already passed before she sent the e-mail and that he did not
approve employees for promotion unless they had achieved “Exceptional
Performance” ratings for at least two years, which Hamilton had not. (Slayden had
rated Hamilton’s overall abilities each year as “Fully Competent,” which was a
step below “Exceptional Performance.”) Although not a company policy, it is
undisputed that Slayden consistently followed his “two EP ratings” rule and had
recommended female and non-white employees for promotion when they met his
requirements and did not recommend white males for promotion when they did
not.
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Two days after her performance review, on March 13, 2015, Hamilton sent
an e-mail to Slayden claiming that she had been subject to retaliation and a lack of
equal employment opportunities and asking how to report her grievances. Slayden
directed her to contact HR. Hamilton e-mailed HR on March 30 and alleged that
she was being paid less than her peers and that her manager from her former team
(not Vandermeys) had suppressed her advancement. She also mentioned that she
faced “subtle discrimination,” though she did not explain what that meant or what
form it took. HR conducted an investigation and determined that Hamilton was
not due a promotion and that she had not faced discrimination.
During this same time period Hamilton was being trained in her new role as
a software supplier manager by David King, the deputy software lead and cost
account manager for Hamilton’s new team. He and the other members of the team
were classified as labor grade L5s — two labor grades above Hamilton — and had
prior experience as software supplier managers. They also had greater job
responsibilities than Hamilton did. Vandermeys initially thought that Hamilton
was also an L5, but in February 2015 learned that she was an L7. Hamilton’s
position ordinarily would have required her to be an L5 as well, so Vandermeys
scheduled a phone call with Hamilton for April 1 to discuss tailoring her job duties
to make them appropriate for an L7.
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In that phone conversation Vandermeys told Hamilton that she had spoken
with Hamilton’s former team manager and with Slayden, and then outlined her
expectations of her team members. The next day Hamilton sent an e-mail to
Vandermeys questioning many of these expectations and stating that she felt
“singled out” by Vandermeys’ direction, that the timing of the phone call was
“suspect,” and that she “fe[lt] retaliated against.” Vandermeys forwarded the
e-mail to HR.
In late June 2015 Hamilton sent an e-mail to Slayden informing him that she
was going to use some of her vacation days. Slayden responded by asking whether
Hamilton’s work would be affected by the time off and if Hamilton had told
Vandermeys. Hamilton replied that Slayden had never before asked her these
questions and accused him of harassment and retaliation for asking them now.
HR set up a meeting with Hamilton and Slayden for June 29, 2015, to try to
work out the conflicts that Hamilton was having with her team and with Slayden.
Before the meeting Hamilton e-mailed a complaint to the general counsel, the
senior vice president of HR, and the ombudsman of United Technologies
Corporation (Sikorsky’s parent company at the time) and told them that the HR
managers at Sikorsky had not investigated her complaint properly. She also
e-mailed Slayden and the Sikorsky HR managers with whom she was about to
meet to reiterate that she thought Slayden was harassing her and retaliating against
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her by asking her to answer questions before he approved her requests for time off.
Hamilton repeated those concerns at the meeting and expressed her opinion that
she was being treated differently than her co-workers.
UTC launched a formal investigation of Hamilton’s claims the next week
and hired Dennis Aiken, a former employee and retired FBI agent, to produce a
report. Aiken submitted his 45-page report on September 9, 2015. He found no
evidence of discrimination or retaliation against Hamilton.
Two days later, on September 11, Vandermeys learned that Hamilton was
causing some confusion by e-mailing internal questions to a supplier. She directed
Hamilton to refrain from e-mailing any of the suppliers directly and to instead send
all correspondence through King or Vandermeys. She then scheduled a phone
conversation with Hamilton for September 16. The day before that conversation
was to happen Hamilton requested a written description of her job responsibilities.
Vandermeys provided this on the 16th and rescheduled the call for the 17th. Then
Hamilton pushed the call back by two weeks, telling Vandermeys that she thought
the phone call pertained to her HR complaint. Vandermeys then learned that
Hamilton had contacted a supplier directly on September 15 — four days after
Vandermeys had told her not to do that. Vandermeys again reached out to
Hamilton to tell her not to have direct contact with any of the suppliers. Hamilton
responded by saying the request was “ludicrous.”
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On September 28, 2015, Lisa Lafferty, the head of Sikorsky’s HR group,
e-mailed Hamilton to set up a meeting to discuss her conflict with Vandermeys.
Hamilton responded to the e-mail on October 5 by saying that she did not want to
discuss her complaint unless Lafferty first provided her with an outline, in writing,
“stating what the content discussion o[f] [her] role going forward will be.”
Lafferty replied that she did not intend to discuss Hamilton’s complaint, that the
investigation of her complaint had already been completed, and that she instead
wanted to discuss “the company’s expectations of [Hamilton’s] work performance,
including [its] expectations of how to handle day to day interactions and requests
from [Hamilton’s] management team.” Hamilton again refused to meet, stating
that she thought the meeting was scheduled because she had filed a complaint.
Lafferty decided to terminate Hamilton’s employment and wrote in her termination
letter to Hamilton that Hamilton had “continued to refuse to follow direction
and/or participate in meetings” and that her behavior had become “insubordinate
and [was] not acceptable.”
Hamilton sued Sikorsky, alleging that Sikorsky paid her substantially less
than similarly situated male employees in violation of the Equal Pay Act, 29
U.S.C. § 206(d); discriminated against her on the basis of gender, race, and
national origin in violation of the Florida Civil Rights Act and 42 U.S.C. § 1981;
retaliated against her for complaining of discrimination in violation of the EPA, the
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FCRA, and 42 U.S.C. § 1981; and breached its contract with the United States
under Executive Order 11246 by discriminating and retaliating against her. The
district court granted summary judgment to Sikorsky on all counts. Hamilton
appeals.
III.
We review de novo a district court’s grant of summary judgment and draw
all reasonable inferences and review all evidence in the light most favorable to the
non-moving party. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,
1318 (11th Cir. 2012). Summary judgment is appropriate if “there is no genuine
issue as to any material fact and the moving party is entitled to a judgment as a
matter of law.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225 (11th Cir.
2005) (quotation marks omitted).
Hamilton challenges the district court’s grant of summary judgment on each
of her four claims. We consider each in turn.
A.
“An employee demonstrates a prima facie case of an Equal Pay Act
violation by showing that the employer paid employees of opposite genders
different wages for equal work for jobs which require equal skill, effort, and
responsibility, and which are performed under similar working conditions.” Steger
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v. Gen. Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir. 2003) (quotation marks
omitted); see 29 U.S.C. § 206(d)(1).
Hamilton contends that Sikorsky violated the EPA by paying her less than
her male colleagues. In support of her claim, and in response to Sikorsky’s motion
for summary judgment on the issue, she points to three pieces of evidence in the
record: her declaration, Aiken’s deposition testimony, and Vandermeys’
deposition testimony. First, Hamilton asserted in her declaration that in 2012 she
“did the same work as Joe Guadiana[,] who was an L6,” and that in 2015 she
“performed the same work as [her] white, male colleagues who were L5s” and
“was still doing L5 work . . . to the end of [her] employment on October 7, 2015.”
Second, Aiken, the investigator hired by UTC, responded to a question in his
deposition about whether Hamilton had job duties commensurate to those of an L5
by saying: “I personally don’t know her job responsibilities were commensurate.
But I was told that her job responsibilities were more similar to that of an L-5, and
that’s why they wanted to give her job responsibilities more similar to an L-7,
which she was.” And third, Vandermeys said in her deposition that she did not
know that Hamilton was an L7 instead of an L5 when Hamilton first joined the
team. Hamilton argues that, when viewed in the light most favorable to her, these
three pieces of evidence are enough to raise a genuine dispute about whether she
performed the same work as her higher-paid male colleagues.
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We disagree. Sikorsky has pointed to specific evidence in the record that
shows that it is entitled to summary judgment on Hamilton’s EPA claim. In
response to Hamilton’s assertion that she made less than Guadiana did in 2012,
Sikorsky provided the actual 2012 salaries of both Guadiana and Hamilton.
Hamilton’s salary was higher. Hamilton did not contest the numbers submitted by
Sikorsky or offer anything else to support her conclusory statement that she was
paid less than Guadiana. Likewise, Sikorsky offered evidence showing that
Hamilton’s co-workers on her new team had job responsibilities that she did not.
For instance, in addition to training Hamilton, King acted as the software supplier
manager for one of Sikorsky’s major suppliers and as the primary software point of
contact for the Training Integrated Product Team at Sikorsky. Stephen Sholtis,
another team member, served as the software supplier manager and cost account
manager for the company’s largest supplier. Hamilton provided no evidence that
she did similar tasks, nor did she name any person on her team whose role was
more similar to her own. And as for Vandermeys’ statement that she initially
thought that Hamilton was an L5, she later clarified in a sworn declaration that
Hamilton was “not performing L5 or even L7 job responsibilities as a Software
Supplier Manager.” These statements do not conflict with each other; the latter
simply explains the former.
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Hamilton argues that to accept the facts submitted by Sikorsky is to
improperly weigh the evidence and draw inferences in favor of the movant instead
of the non-movant on summary judgment. But that’s not so. There is a difference
between saying what the facts of the case are and viewing those facts in the light
most favorable to Hamilton. What Hamilton provided in her declaration are not
factual statements but “conclusory allegations” of the sort we have repeatedly held
“have no probative value.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th
Cir. 2000); see United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (en banc)
(“An affidavit cannot be conclusory, but nothing in Rule 56 . . . prohibits an
affidavit from being self-serving.”) (citation omitted).
Hamilton takes exception to characterizing her statement as conclusory, but
stating with nothing more that she “performed the same work as [her] white, male
colleagues who were L5s” is, by definition, conclusory: It “[e]xpress[es] a factual
inference without stating the underlying facts on which the inference is based.”
Conclusory, Black’s Law Dictionary (10th ed. 2014). The underlying facts that
Hamilton did not provide — but Sikorsky did — are (1) who the white, male
colleagues were, (2) what work they performed, and (3) what work Hamilton
performed. And in the face of those underlying facts, which are all unfavorable to
her, Hamilton’s general statement has no probative value. See Evans v. Books-A-
Million, 762 F.3d 1288, 1296 (11th Cir. 2014) (upholding district court’s decision
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to strike portions of plaintiff’s summary judgment affidavit as conclusory because
plaintiff’s statement that her male colleagues were making more money than she
“did not provide specific, supporting facts regarding, for example, the amount of
other employees’ salaries compared to hers”).
Hamilton did not provide any rebuttal evidence that created a genuine
dispute of material fact on these issues.2 See Josendis, 662 F.3d at 1315 (“[T]he
non-moving party cannot satisfy its burden if the rebuttal evidence ‘is merely
colorable, or is not significantly probative’ of a disputed fact.”) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511 (1986)). The
district court therefore did not err in granting summary judgment to Sikorsky when
the undisputed evidence showed that it was not paying Hamilton less than her male
coworkers “for equal work on jobs the performance of which require[d] equal skill,
effort, and responsibility.” 29 U.S.C. § 206(d).
B.
Hamilton next argues that the district court erred by improperly weighing
evidence on her claims of gender, race, and national origin discrimination in
2 This is true even if Aiken’s deposition testimony that he “was told” about Hamilton’s job responsibilities is considered. In any event, we agree with the district court that it should not be because it was not based on personal knowledge. Cf. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (“All affidavits must be based on personal knowledge and must set forth facts that would be admissible under the Federal Rules of Evidence.”).
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violation of the Florida Civil Rights Act and 42 U.S.C. § 1981. Claims of
discrimination under the FCRA and § 1981 are analyzed under the same
burden-shifting framework applied to claims under Title VII of the Civil Rights
Act of 1964. See Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 n.6 (11th
Cir. 2015). A plaintiff typically establishes a prima facie case of discrimination by
“showing that she was a qualified member of a protected class and was subjected
to an adverse employment action in contrast to similarly situated employees
outside the protected class.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1264 (11th Cir. 2010). The district court ruled that Hamilton did not meet
this threshold showing because Hamilton could not show that she performed the
same work as her higher-paid colleagues or that her failure to be promoted was in
contrast to similarly situated employees who were either not female, not black, or
not Jamaican.
Hamilton makes one argument on appeal, so that is the only argument we
need consider. See AT&T Broadband, 381 F.3d at 1320 n.14 (“Issues not raised
on appeal are considered abandoned.”). Her argument is that the district court
improperly weighed evidence by discounting the statement of a Sikorsky HR
manager that, according to Hamilton, “inferentially show[ed] that there [was]
evidence of discrimination.” The complete statement is this: “Ms. Hamilton has
been an L7 for ten years; this is an excessive duration to be at this level unless
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performance is not up to par. Ms. Hamilton’s performance has consistently been at
fully competent level since 2010 so it does not appear that her performance is sub-
par.”
We cannot agree with Hamilton that this statement, standing alone (which is
how Hamilton presents it), is enough to establish a prima facie case of
discrimination on the basis of her race, gender, or national origin. Nor do we agree
that the district court improperly weighed evidence simply because it rejected
Hamilton’s assertion that the statement showed evidence of discrimination. In fact,
the district court considered the statement in light of all the evidence before it.
That evidence included testimony by the same HR manager that she did not find
evidence of discrimination, and included evidence presented by Sikorsky that
showed that fourteen white males who entered Hamilton’s job code after she did
had also not been promoted to the next labor grade. After considering all of the
evidence, the court properly found that Hamilton had not made a prima facie
showing. And to the extent Hamilton’s claim of discrimination is based on her
being paid less than her male co-workers for the same work, that claim must fail
for all the reasons discussed above. The district court did not err by concluding
likewise.
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C.
We next turn to Hamilton’s retaliation claim. She contends that the district
court again improperly weighed evidence and drew inferences against her by
crediting Sikorsky’s explanation of events rather than hers. To establish a prima
facie case of retaliation, a plaintiff must show that (1) she engaged in statutorily
protected expression, (2) she suffered “a materially adverse action,” and (3) “there
was a causal connection between the protected activity and the adverse action.”
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012)
(quotation marks omitted).
The district court ruled that Hamilton waived any argument that the HR
complaints she submitted on January 31, March 30, and June 29 of 2015
constituted the statutorily protected expression for which she was fired. Hamilton
does not challenge that ruling on appeal. The district court then turned to
Hamilton’s assertion that the e-mails she sent to Lafferty on October 5 and 6 (when
Lafferty was trying to meet with her but Hamilton refused to do so) constituted
statutorily protected expression. The district court concluded that these e-mails did
not because they stated only Hamilton’s belief that Lafferty wished to discuss her
complaint and otherwise contained only vague assertions of discrimination or
unfair treatment. Hamilton does not challenge that ruling on appeal, either.
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Hamilton instead focuses her argument solely on the district court’s
alternative ruling that Sikorsky articulated legitimate, non-retaliatory reasons for
firing her and that she did not present evidence showing that those reasons were
pretext for retaliation. But “[t]o obtain reversal of a district court judgment that is
based on multiple, independent grounds, an appellant must convince us that every
stated ground for the judgment against h[er] is incorrect. When an appellant fails
to challenge properly on appeal one of the grounds on which the district court
based its judgment, [s]he is deemed to have abandoned any challenge of that
ground, and it follows that the judgment is due to be affirmed.” Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). That is the
situation here. Hamilton has not argued that the district court erred in finding that
Hamilton’s e-mails were not statutorily protected expression to begin with. That
finding was enough to grant summary judgment to Sikorsky on her retaliation
claim. 3
D.
That leaves Hamilton’s argument that Sikorsky breached its contract with
the United States under Executive Order 11246 by discriminating and retaliating
3 Hamilton states in her brief that her final e-mail to Lafferty “clearly constitute[d] protected activity,” but this passing reference in a section arguing against one of the district court’s alternative rulings is not enough to preserve the argument. See Sapuppo, 739 F.3d at 681 (explaining that a claim is abandoned when a party “makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority”). 17 Case: 18-11378 Date Filed: 01/25/2019 Page: 18 of 18
against her. Executive Order 11246 requires governmental contractors not to
discriminate against any employee because of race, creed, color, or national origin,
and to take affirmative action to ensure that employees are treated without regard
to race, creed, color, or national origin. Exec. Order No. 11246.
“[C]ourts have repeatedly held that executive order 11246 does not create a
private cause of action for employees to enforce the equal opportunity clause in
their employers’ government contracts.” Eatmon v. Bristol Steel & Iron Works,
Inc., 769 F.2d 1503, 1515 (11th Cir. 1985) (collecting cases). We decline
Hamilton’s invitation to recognize such an action now.
AFFIRMED.