Evanjalyst M. Harris v. Department of Children & Families, Office of the Inspector General ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11581
Non-Argument Calendar
____________________
EVANJALYST M. HARRIS,
Plaintiff-Appellant,
versus
DEPARTMENT OF CHILDREN & FAMILIES, OFFICE OF
THE INSPECTOR GENERAL,
an Agency of the State of Florida,
Defendant-Appellee.
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2 Opinion of the Court 21-11581
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-62842-RS
____________________
Before LUCK, BRASHER, and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Evanjalyst M. Harris appeals the district court’s
order granting summary judgment in favor of defendant Depart-
ment of Children and Families, Office of the Inspector General
(“DCF”) on her race-discrimination and retaliation claims brought
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”).
First, Harris argues that the district court erred in granting DCF
summary judgment on her disparate impact claim because the dis-
trict court should have conformed her pleadings to the evidence
raised at discovery and because she was not required to provide
statistical evidence. Second, Harris argues that the district court
erred in finding that there was no causal connection between her
termination and the complaint she filed on November 15, 2018,
and that she could not amend her retaliation claim to include e-
mails she sent on November 7 and 8, 2018, as protected activities
during summary judgment proceedings. After reviewing the rec-
ord and reading the parties’ briefs, we affirm the district court’s or-
der granting summary judgment to DCF.
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21-11581 Opinion of the Court 3
I.
We review de novo a district court’s grant of summary judg-
ment, using the same legal standards applied by the district court.
Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir.
2010). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). We view the evidence in the light most favorable to the non-
movant. Alvarez, 610 F.3d at 1263-64.
When a movant shows that no genuine dispute of material
fact exists, the burden shifts to the non-movant to demonstrate that
there is a genuine issue of material fact that precludes summary
judgment. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). The non-movant must go beyond the pleadings and present
competent evidence setting forth specific facts to show that a gen-
uine issue of fact exists. Young v. City of Palm Bay, Fla., 358 F.3d
859, 860 (11th Cir. 2004). The non-moving party cannot survive
summary judgment by presenting a mere scintilla of evidence. Id.II.
Title VII prohibits employers from discriminating against an
individual because of her race. 42 U.S.C. § 2000e-2(a)(1). A dispar-
ate impact theory of discrimination prohibits neutral employment
practices that are non-discriminatory on their face but have a dis-
proportionate impact on a statutorily-protected group. E.E.O.C.
v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000). To
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4 Opinion of the Court 21-11581
establish a disparate impact claim, the plaintiff must show that:
(1) there is a significant statistical disparity between the proportion
of minorities available in the labor pool and the proportion of mi-
norities hired by the employer; (2) there is a specific, facially-neu-
tral employment practice causing the disparity; and (3) a causal
nexus exists between them. Id. To prevail, “the plaintiff must offer
statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion of applicants for jobs
or promotions because of their membership in a protected group.”
Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994, 108 S. Ct.
2777, 2789 (1988).
As a preliminary matter, we conclude from the record that
Harris waived the argument that the district court should have con-
formed the pleadings to the evidence and considered an alternative
race discrimination claim for failure to promote as a disparate treat-
ment claim by failing to raise it in the district court. See Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(we do not consider an issue that was not raised in the district court
but, rather, is raised for the first time on appeal). Accordingly, we
will not consider that argument.
Next, based on the record, we conclude that the district
court did not err in granting DCF’s motion for summary judgment
because Harris failed to support her disparate impact claim with
any statistical evidence. To prevail on her disparate impact claim,
Harris was required to offer statistical evidence to show that DCF’s
practice of not announcing the supervisory position caused the
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21-11581 Opinion of the Court 5
exclusion of African American candidates for the promotion. The
record demonstrates that Harris did not provide any statistical evi-
dence to support her disparate impact claim. Thus, the district
court properly found that she failed to establish a prima facie case
of discrimination.
III.
The anti-retaliation provision of Title VII forbids an em-
ployer from retaliating against an employee because she has op-
posed “an unlawful employment practice.” 42 U.S.C. § 2000e-3(a).
To establish a prima facie case of retaliation under Title VII, a plain-
tiff must show that: (1) she engaged in a statutorily protected activ-
ity; (2) she suffered a materially adverse employment action; and
(3) there is a causal connection between the protected activity and
the materially adverse action. Brown v. Ala. Dep’t of Transp., 597
F.3d 1160, 1181 (11th Cir. 2010).
To prove a causal connection, a plaintiff need only demon-
strate “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 marks and alterations omit-
ted). A plaintiff satisfies this element if she “provides sufficient ev-
idence that the decision-maker became aware of the protected con-
duct, and that there was a close temporal proximity between this
awareness and the adverse [] action.” Id. (quotation marks omit-
ted). We have noted that a period of approximately one month be-
tween the protected activity and the adverse action is not too
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6 Opinion of the Court 21-11581
protracted. See Donnellon v. Fruehauf Corp., 794 F.2d 598, 601
(11th Cir. 1986).
Importantly, “when an employer contemplates an adverse
employment action before an employee engages in protected ac-
tivity, temporal proximity between the protected activity and the
subsequent adverse action does not suffice to show causation.”
Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006). We have ob-
served that an adverse action must “follow[ ] the protected con-
duct.” Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir.
1999). An employer “proceeding along lines previously contem-
plated, though not yet definitively determined, is no evidence
whatever of causality.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 272, 121 S. Ct. 1508, 1511 (2001) (emphasis added).
A party may amend her pleading once as a matter of course
within 21 days after serving it or 21 days after service of a respon-
sive pleading or motion under Rule 12(b), (e), or (f). Fed. R. Civ.
P. 15(a)(1). In all other cases, “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The
court should freely give leave when justice so requires.” Id.
15(a)(2). “[T]he proper procedure for [a] plaintiff[] to assert a new
claim is to amend the complaint in accordance with Fed. R. Civ. P.
15(a),” and we have held that a plaintiff may not raise a new claim
at the summary judgment stage or attempt to amend the complaint
“through argument in a brief opposing summary judgment.” Gil-
mour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004).
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21-11581 Opinion of the Court 7
As a preliminary matter, Harris has abandoned her argu-
ment that DCF is strictly liable for failing to investigate her claims
by not raising it on appeal. See Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008) (stating that a party abandons an argument by
failing to raise it on appeal). Next, we conclude that, based on the
record, the district court did not err in granting DCF’s motion for
summary judgment and denying Harris’s motion for summary
judgment as to her retaliation claim because she did not establish a
causal connection between her protected activity and termination.
The district court correctly found that Harris could not rely on her
November 7 and 8 e-mails as the basis for her protected activity
because her second amended complaint relied only on her Novem-
ber 15 complaint.
Next, Harris could not establish a causal connection be-
tween her protected activity and termination because the undis-
puted evidence showed that the decision to terminate her occurred
before she filed her November 15 complaint. While Harris was not
formally dismissed until December 20, 2018, the undisputed evi-
dence indicates that DCF had all the information it would eventu-
ally rely on when terminating Harris. Accordingly, the district
court properly found that Harris failed to establish a prime facie
case of retaliation.
For the aforementioned reasons, we affirm the district
court’s order granting summary judgment to DCF.
AFFIRMED.