Lara W. Swindle v. Mike Hale , 593 F. App'x 919 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14050
________________________
D. C. Docket No. 2:09-cv-1458-SLB
LARA W. SWINDLE,
Plaintiff - Appellant,
versus
JEFFERSON COUNTY COMMISSION, et al.,
Defendants,
MIKE HALE, in his official capacity,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 26, 2014)
Before HULL, MARCUS and DUBINA, Circuit Judges.
PER CURIAM:
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Lara Swindle appeals the district court’s grant of summary judgment to
Jefferson County Sheriff Mike Hale, who was sued in his official capacity, on her
Title VII claims. After carefully reviewing the record and the parties’ briefs, we
affirm.
I.
In May 2006, Swindle went to work for the Jefferson County Sheriff’s
Office (JCSO) as a Laborer III, an at-will employee, assigned to the “weight crew” in
the JCSO’s Bessemer division.1 She worked in that position until October 2009,
when the weight crew was put on administrative leave in the wake of the county’s
financial problems. She resigned in February 2010, while on administrative leave.
David Newton was Swindle’s immediate supervisor from the day she was
hired until March 26, 2008. That day, she filed a personnel complaint with the
JCSO alleging that Newton and David Stone, who was not her supervisor but had
the authority to assign her work, 2 had been sexually harassing her for nearly two
years. Newton’s harassment allegedly consisted of
1
The Laborer III position required the ability to perform heavy manual labor. Swindle’s
duties included checking and weighing trucks to ensure that they were not overweight and
assisting deputies on traffic stops.
2
After the district court granted summary judgment to Sheriff Hale but before the parties’
filed their briefs in this appeal, the Supreme Court narrowed the meaning of “‘supervisor’ for
purposes of vicarious liability under Title VII” to an employee who “is empowered by the
employer to take tangible employment actions against the victim.” Vance v. Ball State
Univ., --- U.S. ----, ----, 133 S. Ct. 2434, 2454 (2013).
Even so, and without citing Vance, Swindle continues to argue on appeal that Stone was
her supervisor and thus Sheriff Hale is vicariously liable for his sexual harassment. While Vance
casts doubt on the correctness of this conclusion, we need not resolve this doubt here. Instead,
we assume that Swindle’s characterization of Newton and Stone as “supervisors” is correct.
2
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(1) responding to her requests for vacation by telling her several times that
he would have to “spank . . . [her] little naked ass”; (2) by grabbing her
breast on one occasion; (3) by indicating on several occasions that he wanted
her to unbutton her shirt; and (4) by standing behind her and pressing his
genitals into her backside on more than one occasion.
Doc. 59 at 6–7 (alteration in original). Stone’s alleged harassment consisted of
(1) asking her to unbutton her shirt on several occasions; (2) putting her
hand on his erect penis and saying: “You made this happen, now you need
to take care of it”; and (3) reaching for a cell phone that was between her
legs and touching her thigh in the process.
Id. at 10. Following the JCSO’s investigation, Stone was terminated on June 6,
2008; Newton was terminated on July 8, 2008.3
On August 21, 2008, Swindle filed a Title VII charge of discrimination with
the Equal Employment Opportunity Commission, which she amended two months
later. 4 After the EEOC issued a right-to-sue letter, Swindle brought this Title VII
3
Newton appealed his termination to the county personnel board. A settlement was
reached; he agreed to 60 days’ suspension without pay followed by an additional three-and-a-
half months’ administrative leave without pay. Stone also appealed to the personnel board. The
board adopted the hearing officer’s recommendation and reduced his discipline to 45 days’
suspension without pay. On return to the JCSO, Newton and Stone were re-assigned to the
Bessemer jail. Neither became Swindle’s supervisor.
4
As amended, Swindle alleged the following:
My sex is female. I began my employment with the above named employer on
May 22, 2006, as a Laborer III. Since I began my employment I have been sexually
harassed by two Deputies, one Deputy was my Supervisor at the time. On March 26,
2008, I filed sexual harassment claims with the employer against two deputies I work
with. My immediate Supervisor, at the time, was one of the offenders. After my
complaint, I was retaliated against, in the following respect: by being told I would have
to transfer, by having other employees being told of my complaint, by being required to
take a polygraph test to prove that my allegations were true, by being required to ride to a
job in a patrol unit that has a cage, by being required to perform alone, duties that
3
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action against Sheriff Hale. Swindle alleged that Newton and Stone’s conduct
constituted sex discrimination and created a hostile work environment, and that she
was retaliated against for filing the March 26 personnel complaint against them.
The district court granted summary judgment to Sheriff Hale on Swindle’s
Title VII claims. The court concluded that her sexual-harassment claim failed
because Sheriff Hale established the Faragher–Ellerth affirmative defense.5 As
for her retaliation claim, the court made two rulings. First, some acts of alleged
retaliation had not been administratively exhausted because they were outside of
the scope of the EEOC investigation that could reasonably be expected to flow
from her Title VII charge. Second, the remaining acts of alleged retaliation—
regardless of whether they were “considered alone or collectively”—did not
constitute a materially adverse action because they would not have “dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Doc.
59 at 47. Swindle’s retaliation claim thus failed, the court concluded, because she
could not establish a prima facie case of retaliation.
This appeal followed.
required more than one person to perform, and by being issued a written warning for
allegedly having my feet in my fiancée’s lap.
I believe I have been discriminated against because of my sex, and in retaliation
for complaining of unlawful discrimination, in violation of Title VII of the Civil Rights
Act of 1964, as amended.
Doc. 38-27 at 2.
5
See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2292–93 (1998);
Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998).
4
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II.
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court and drawing all factual inferences
in favor of the nonmoving party. Johnson v. Bd. of Regents of Univ. of Ga., 263
F.3d 1234, 1242–43 (11th Cir. 2001). Summary judgment is appropriate where the
pleadings, affidavits, depositions, admissions, and the like “show[ ] that 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); Celotex Corp. v. Catrett, 477 U.S. 322, 106
S. Ct. 2548, 2552 (1986). To survive a motion for summary judgment, the
nonmoving party must offer more than a mere scintilla of evidence for its position;
indeed, the nonmoving party must make a showing sufficient to permit the jury to
reasonably find on its behalf. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala.,
446 F.3d 1160, 1162 (11th Cir. 2006).
III.
On appeal, Swindle contends that the district court committed three errors in
granting summary judgment to Sheriff Hale.
First, the court inaccurately concluded that Sheriff Hale established the
Faragher–Ellerth affirmative defense and incorrectly restricted the scope of
her sexual-harassment claim.
Second, the court wrongly concluded that certain allegedly discriminatory or
retaliatory acts were not administratively exhausted.
Third, the court erroneously found that she did not suffer any adverse
employment action and thus failed to establish a prima facie case of
retaliation.
5
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We examine each alleged error in turn.
A.
1.
Title VII protects an employee from having to endure a hostile work
environment that is the product of unlawful harassment. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993). “Sexual harassment is a
form of sex discrimination prohibited by Title VII.” Gupta v. Fla. Bd. of Regents,
212 F.3d 571, 582 (11th Cir. 2000), abrogated on other grounds by Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006).
To establish a prima facie case of a sexually hostile work environment, the
plaintiff must show that (1) she is a member of a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment was based on her sex; (4)
the harassment was sufficiently severe or pervasive to alter the terms or conditions
of her employment; and (5) a basis exists for holding her employer liable either
directly or vicariously. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002). Here, like the district court, we assume that Newton and Stone’s
conduct constituted sexual harassment.
An employer is vicariously liable to an employee for a hostile work
environment created by a supervisor. Faragher, 524 U.S. at 807, 118 S. Ct. at
2292–93. But where, as here, the employee suffers no adverse employment action,
the employer may assert the Faragher–Ellerth affirmative defense. To succeed,
the employer must show that (1) it exercised reasonable care to prevent and
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promptly correct harassing behavior, and (2) the employee unreasonably failed to
take advantage of the employer’s preventative and corrective opportunities or to
otherwise avoid harm. Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270.
For the first prong of the Faragher–Ellerth defense, a formal anti-
harassment policy is some proof that the employer exercised reasonable care to
prevent harassing behavior. See Faragher, 524 U.S. at 807, 118 S. Ct. at 2293
(stating that a formal policy is “not necessary in every instance as a matter of
law”). But it “does not automatically satisfy [the employer’s] burden.” Frederick
v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir. 2001). As for whether
an employer exercised reasonable care to promptly correct sexual harassment, the
employer “need not act instantaneously, but must act in a reasonably prompt
manner to respond to the employee’s complaint,” once the employer has proper
notice of it. Id.For the second prong of the Faragher–Ellerth defense, “an employer’s
showing that the plaintiff-employee failed to follow its complaint procedures will
often be sufficient [to] satisfy its burden.” Id. “An employee must comply with
the reporting rules and procedures her employer has established.” Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287, 1306 (11th Cir. 2007). Even so, in some
cases the employee’s noncompliance may be reasonable—such as where the
employee did not receive the policy or was wrongfully told not to pursue her
complaint—and in such cases the employer cannot satisfy the second prong of the
Faragher–Ellerth defense. Frederick, 246 F.3d at 1314, 1316.
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In addition to any prompt reporting duties under an employer’s policy, an
employee has a “prompt reporting duty under the prophylactic rules the Supreme
Court built into Title VII” in Faragher and Ellerth. Baldwin, 480 F.3d at 1306.
Indeed, we have held that an employee who first complained about two allegedly
discriminatory incidents more than three months after they occurred waited too
long. Id. at 1307; see also Walton v. Johnson & Johnson Servs., 347 F.3d 1272,
1289–90 (11th Cir. 2003) (concluding that a reporting delay of two-and-a-half
months was too long); cf. Ellerth, 524 U.S. at 764, 118 S. Ct. at 2270 (explaining
that the prompt reporting requirement encourages employees to report harassment
“before it becomes severe or pervasive”).
Here, Sheriff Hale established the Faragher–Ellerth defense. As to the first
prong, Sheriff Hale showed that he exercised reasonable care to prevent harassing
behavior. The JCSO has a formal sexual-harassment policy, and there is no
dispute about what the policy’s reporting requirements actually were. Nor is there
a genuine dispute over whether the policy was both reasonable and effectively
published. See Baldwin, 480 F.3d at 1303. The policy defined sexual harassment
and set out the reporting requirements, including that an employee being harassed
by her supervisor could report the harassment to her supervisor’s supervisor, the
county attorney, or an employee-relations officer. Cf. Faragher, 524 U.S. at 808,
118 S. Ct. at 2293. Swindle stated several times that she had received the JCSO
policy-and-procedure manual and the sexual-harassment policy and that she had
discussed these documents at an employee orientation.
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Sheriff Hale also showed that he exercised reasonable care to promptly
correct harassing behavior. When Swindle reported that she was being sexually
harassed, Newton was placed on administrative leave that same day, and Stone was
placed on administrative leave two weeks later. An investigation was immediately
launched. And after investigators performed multiple polygraphs and interviews
and issued numerous reports, Newton and Stone were terminated. See Baldwin,
480 F.3d at 1304–05. The evidence also showed that JCSO supervisors responded
to Swindle’s post-complaint allegations of discrimination through their deputies.
The district court thus properly determined that Sheriff Hale satisfied the first
prong of the Faragher–Ellerth defense.
As to the second prong, Sheriff Hale showed that Swindle unreasonably
failed to timely report the harassment and no extenuating circumstances excuse her
noncompliance. Swindle asserted that the harassment began in June 2006, not long
after she was hired. Her first complaint, however, was not made until almost two
years later. This was not prompt. See id. at 1307. As for why she waited, Swindle
said that she thought conditions would improve, thought complaining would cost
her the job, and found Newton intimidating. But a fear of being fired is not an
extenuating circumstance. See id. Neither is Swindle’s contention that she
reasonably felt that reporting to her immediate supervisor was pointless, especially
given her knowledge of the JCSO’s sexual-harassment policy, her inconsistent
statements about whether she knew that she could complain without going through
Newton, and her ultimate decision to report to Newton’s supervisor. See id. In
short, Swindle has not shown that her noncompliance with the reporting
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requirements was reasonable and thus should be excused. Accordingly, the district
court properly determined that Sheriff Hale satisfied the second prong of the
Faragher–Ellerth defense.
In sum, because Sheriff Hale established both prongs of the Faragher–
Ellerth defense, we conclude that the district court properly granted summary
judgment in his favor on Swindle’s Title VII sexual-harassment claim related to
Newton and Stone’s conduct.
2.
Before filing a civil action, a Title VII plaintiff must exhaust her
administrative remedies by filing a charge of discrimination with the EEOC.
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004). For
Alabama employees, this charge must be filed within 180 days of the alleged
unlawful employment activity. Ledbetter v. Goodyear Tire & Rubber Co., 421
F.3d 1169, 1178 (11th Cir. 2005). The 180-day limit for filing an EEOC charge
precludes a plaintiff from recovering for discrete acts of discrimination or
retaliation that occurred outside of that period. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122, 122 S. Ct. 2061, 2077 (2002). A charge alleging a
hostile work environment, however, is not time-barred so long as all acts alleged
were part of the same unlawful employment practice and at least one act fell within
the statutory period. Id.Here, Swindle’s sex-discrimination claim was timely for summary-judgment
purposes. This is because viewing the facts and all inferences therefrom in her
favor, one incident of sexual harassment could have occurred within 180 days of
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her first EEOC charge. See Brooks, 446 F.3d 1162. Thus, contrary to Sheriff
Hale’s contention, the district court did not err by considering this claim.
But this does not mean that every unlawful incident referenced in Swindle’s
amended EEOC charge, pleaded in her judicial complaint, or mentioned in her
brief in opposition to summary judgment contributed to her sexually hostile work
environment. The sexual harassment of Newton and Stone, which led to the
March 26 personnel complaint, and the post-complaint incidents are different in
kind: Swindle’s sex did not motivate the post-complaint incidents. Nor does she
suggest otherwise. Indeed, she twice painted these incidents as retaliation rather
than sexual harassment: first, in her amended EEOC charge, and later in her
judicial complaint. We thus discern no error with the district court’s finding that
the post-complaint incidents were distinct from her sex-discrimination claim.
B.
An employee who has exhausted her administrative remedies may pursue a
civil action within 90 days of receiving a right-to-sue letter from the EEOC. 42
U.S.C. § 2000e-5(f)(1). The judicial complaint, however, is limited to the scope of
the investigation that could reasonably have been expected to flow from the EEOC
charge. Gregory, 355 F.3d at 1280. And we have cautioned that the EEOC charge
should not be strictly construed. Id. Thus, the plaintiff may pursue a judicial claim
so long as it “serve[s] to amplify, clarify, or more clearly focus earlier EEO[C]
complaints.” Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) (quoting Ray v.
Freeman, 626 F.2d 439, 443 (5th Cir. 1980)). But “allegations of new acts of
discrimination are inappropriate.” Gregory, 355 F.3d 1277 at 1279–80.
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Here, the question is whether Swindle administratively exhausted her sex-
discrimination claim insofar as it relies on incidents that occurred after her
March 26 personnel complaint. The district court concluded that she did not. We
agree.
A sex-discrimination claim based on the post-complaint incidents that
Swindle identifies could not reasonably be expected to flow from her amended
EEOC charge. See Gregory, 355 F.3d at 1280. Treating these incidents as sex
discrimination does not serve only to amplify, clarify, or focus her charge of
retaliation—the label that she gave these incidents in her amended EEOC charge
and judicial complaint—rather, she is trying to use them to support a separate
theory of discrimination. This she cannot do. See id. at 1279; Wu, 863 F.2d at
1547. Thus, we conclude that the district court did not err in concluding that she
failed to administratively exhaust her sex-discrimination claim to the extent that it
relied on post-complaint incidents.
But even if a sex-discrimination claim could reasonably be expected to flow
from Swindle’s amended EEOC charge, 6 the post-complaint incidents were
allegedly motivated by retaliation rather than sex. So the district court could not
have concluded that they were part of her sexual-harassment claim. For these
reasons, the district court’s grant of summary judgment on this claim will be
6
Swindle contends that she indicated ongoing sexual harassment by checking the boxes
for “SEX” and “CONTINUING ACTION” on her amended EEOC charge. She also checked the
box for “RETALIATION,” which along with “SEX” (and other forms of unlawful
discrimination) appear in a section separate from “CONTINUING ACTION”; thus, her message
was at best ambiguous.
12
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affirmed. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001)
(explaining that we may affirm on any grounds supported by the record).
C.
Title VII forbids an employer from retaliating against an employee who “has
opposed any practice made an unlawful employment practice by Title VII.”
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (internal brackets
omitted) (quoting 42 U.S.C. § 2000e-3(a)). Title VII’s anti-retaliation provision
“protects an individual not from all retaliation but from retaliation that produces an
injury or harm.” White, 548 U.S. at 67, 126 S. Ct. at 2414. To establish a prima
facie case of retaliation, the plaintiff must adduce evidence of (1) statutorily
protected activity, (2) a materially adverse action, and (3) a causal connection
between the protected activity and the materially adverse action. Kidd v. Mando
Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013).
An employment action is “adverse” only if it results in some tangible,
negative effect on the plaintiff’s employment. Lucas, 257 F. 3d at 1261; see Shotz
v. City of Plantation, Fla., 344 F.3d 1161, 1181–83 (11th Cir. 2003) (requiring a
“material” adverse action). Negative performance evaluations, standing alone, do
not constitute adverse employment actions. See Lucas, 257 F.3d at 1261
(evaluating a retaliation claim under the Americans with Disabilities Act).
In retaliation cases, a challenged action is deemed materially adverse when
the plaintiff shows that the alleged retaliatory conduct “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.”
White, 548 U.S. at 68, 126 S. Ct. at 2415 (quoting Rochon v. Gonzales, 438 F.3d
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1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted)). “We refer to the
reactions of a reasonable employee because we believe that the provision’s
standard for judging harm must be objective.” Id. “Normally petty slights, minor
annoyances, and simple lack of good manners” are not likely to deter a victim of
discrimination from complaining to the EEOC and thus do not constitute
retaliation. See id.According to Swindle, after her March 26 personnel complaint against
Newton and Stone, she was the victim of retaliatory conduct. In her view, the
following incidents are evidence of unlawful retaliation:
(1) being told shortly after her personnel complaint that she would be
reassigned to a different work location, which never occurred because
the officer making the decision changed his mind;
(2) having the content of her sexual-harassment complaint become known
after the investigation was transferred from internal affairs to the
Bessemer division, even though she had previously announced in
front of her weight crew and several supervisors that Newton had
sexually harassed her;
(3) being denied transportation to a work location by her interim
supervisor, an action for which he later apologized;
(4) having to move, on one occasion, four weight scales where ordinarily
she had to move only one;
(5) receiving a ride to a work location in a patrol car with a cage, like
everyone else on her weight crew, rather than the truck that was
normally used;
(6) receiving a performance counseling for alleged misconduct involving
her fiancée, which was not placed in her personnel file;
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(7) being required to take a polygraph about the alleged misconduct
involving her fiancée, the results of which were not placed in her
personnel file;
(8) being denied medical care and paid leave after she suffered a “panic
attack” when a supervisor berated her for inviting someone into his
office without approval, even though she was treated at a local
hospital and took sick days to cover the time she missed;
(9) Sheriff Hale’s failure to respond to her grievance that she was
disciplined for the incident involving her fiancée without a formal
complaint having first been filed, even though she was not disciplined
but rather received a performance counseling that was not placed in
her personnel file;
(10) not being called to testify at Stone’s personnel-board hearing, thereby
permitting him to present only his side of story, which in turn
permitted the hearing officer to conclude that there was insufficient
evidence of sexual harassment and thus to recommend that Stone be
reinstated and his discipline be reduced to 45 days’ suspension
without pay—findings of fact and recommendations that were adopted
by the board and not appealed by the JCSO; and
(11) having to see Newton and Stone at the Bessemer jail after they served
their suspensions, even though they neither had supervisory authority
over her nor spoke or interacted with her.7
Swindle thus concludes that the district court erred in granting summary judgment
to Sheriff Hale on her retaliation claim.
We cannot agree. Swindle failed to establish a prima facie case of
retaliation because each post-complaint incident, whether administratively
7
In alleging retaliation in her judicial complaint, Swindle did not include all of these
incidents. Specifically, she omitted: (3), (8), (9), (10), and (11).
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exhausted or not, 8 neither had a tangible, negative effect on her employment nor
would have dissuaded a reasonable worker from making or supporting a charge of
discrimination. See Lucas, 257 F.3d at 1261; see also White, 548 U.S. at 68, 126
S. Ct. at 2415. Therefore, we conclude that her retaliation claim fails.
We also recognize a cause of action for retaliatory harassment, what we call
a “retaliatory hostile work environment claim.” Gowski v. Peake, 682 F.3d 1299,
1312 (11th Cir. 2012) (per curiam). On appeal, Swindle contends that these post-
complaint incidents were part of a pattern of harassment that constituted retaliation
under White. To reach this conclusion, she considers these allegedly retaliatory
acts cumulatively and then applies White’s materially adverse action standard. As
for how this approach is consistent with our precedent, she never says. 9 In any
8
The district court concluded that each post-complaint incident constituted a discrete act
of retaliation—separate claims of retaliation. As a result, Swindle had to not only
administratively exhaust each claim but also establish a prima facie case for each incident. After
examining Swindle’s amended EEOC charge and judicial complaint, the district court found that
five incidents had not been administratively exhausted because they were not mentioned in nor
reasonably expected to fall within the scope of the EEOC’s investigation. The five claims were:
(1), (3), (8), (9), and (11). The district court thus dismissed these claims on that ground.
Because we may affirm for any reason supported by the record, we need not consider whether
the district court’s conclusion was correct. See Lucas, 257 F.3d at 1256.
9
Swindle appears to rest her argument on the Sixth Circuit’s decision in Hawkins v.
Anheuser-Busch, Inc., which held:
Taking into account our caselaw and the guidance provided by Burlington Northern, we
hold that an employer will be liable for the coworker’s actions if (1) the coworker’s
retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from
making or supporting a charge of discrimination, (2) supervisors or members of
management have actual or constructive knowledge of the coworker’s retaliatory
behavior, and (3) supervisors or members of management have condoned, tolerated, or
encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so
inadequately that the response manifests indifference or unreasonableness under the
circumstances.
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event, even if Swindle had alleged that a cause of action for retaliatory harassment
and these acts of alleged retaliation were considered cumulatively, her claim fails.
To begin, our precedent requires a plaintiff claiming retaliatory harassment
to show that “the workplace [wa]s permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the [plaintiff’s] employment or create an abusive working environment.” Gowski,
682 F.3d at 1311 (quoting Harris, 510 U.S. at 21, 114 S. Ct. at 370) (internal
quotation marks omitted). That is, to establish a prima facie case of retaliatory
harassment, the allegedly adverse actions must meet Harris’s rather than White’s
standard. See id. As a result, retaliatory harassment and the other types of
unlawful harassment have the same standard. Cf. Miller, 277 F.3d at 1275 (setting
forth standard for Title VII national-origin hostile-work-environment claim). 10
We are bound by Gowski. See United States v. Steele, 147 F.3d 1316, 1317–
18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel cannot
overrule a prior one’s holding even though convinced it is wrong.”). Based on our
517 F.3d 321, 347 (6th Cir. 2008).
10
Put another way, a plaintiff establishes a prima facie case of retaliatory harassment
only if she shows that (1) she engaged in protected activity; (2) after doing so, she was subjected
to unwelcome harassment; (3) her protected activity was a “but for” cause of the harassment; (4)
the harassment was sufficiently severe or pervasive to alter the terms or conditions of her
employment; and (5) a basis exists for holding her employer liable either directly or vicariously.
See Gowski, 682 F.3d at 1311–12; Miller, 277 F.3d at 1275; see also Univ. of Tex. Sw. Med. Ctr.
v. Nassar, --- U.S. ----, -----, 133 S. Ct. 2517, 2533 (2013) (holding that “Title VII retaliation
claims must be proved according to traditional principles of but-for causation,” which means
“that the unlawful retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer”).
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review of the record, we conclude that the post-complaint incidents do not come
close to establishing a prima facie case of retaliatory harassment under Harris’s
standard. Nor does Swindle argue otherwise. Thus, the district court’s grant of
summary judgment on Swindle’s retaliation claim will be affirmed.
IV.
Having carefully considered the record in this case, we find no reason to
disturb the district court’s grant of summary judgment. That judgment is,
accordingly,
AFFIRMED.
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