Jocelyn Jones v. Spherion Atlantic Enterprise, LLC , 493 F. App'x 6 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-16033
Non-Argument Calendar
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D.C. Docket No. 6:10-cv-00833-GAP-GJK
JOCELYN JONES,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
SPHERION ATLANTIC ENTERPRISE, LLC,
AMERICAN AUTOMOBILE ASSOCIATION, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(October 17, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Jocelyn Jones appeals from the district court’s grant of summary judgment
in favor of Spherion Atlantic Enterprise, Inc. (SAE), American Automobile
Association (AAA), and Anthony Hinton in her lawsuit alleging employment
discrimination and retaliation in violation of Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981, as well as tortious conduct under Florida common
law. After review, we affirm.
I.
Jones, an African-American female, was employed by SAE, a staffing
agency providing its clients with temporary employees. In May 2007, SAE
assigned Jones to work for AAA as a customer service representative at a call
center in Lake Mary, Florida.
During her time with AAA, Jones alleged Anthony Hinton, a call center
supervisor, treated her and other female African-American employees in a hostile
and demeaning manner. She also alleged Jamie Jordan, an SAE employee also
working at AAA, directed unwanted sexual comments and advances toward her.
Beginning in September 2007, Jones filed numerous complaints with AAA and
SAE management about Hinton and Jordan.
Over the next several months, AAA monitored some of the customer calls
Jones handled as a customer service representative for quality control purposes, in
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accordance with company policy. Jones, like all customer service representatives
working at the call center, received a “Quality Assurance” score based her ability
to follow her call script, handle calls with courtesy, and ask appropriate questions.
Jones’ “Quality Assurance” scores were lower than AAA’s expectations from
September 2007 through December 2007. After several warnings about her poor
“Quality Assurance” scores, Matt Cooper, Jones’ AAA supervisor, recommended
to SAE that Jones be released from her position at AAA. Following Cooper’s
recommendation, SAE terminated Jones from her employment at AAA in
December 2007.
Jones filed this lawsuit, alleging: (1) she was subjected to “disparate
treatment” at AAA because of her race and gender, in violation of Title VII;
(2) SAE retaliated against her for complaining about discriminatory behavior, in
violation of Title VII; (3) AAA is liable for negligently hiring and retaining
Hinton as an employee; (4) and Hinton is liable for battery for brushing up against
her during a confrontation. The district court granted summary judgment in favor
of Appellees on all claims, prompting this appeal.
II
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court, and we draw all factual
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inferences in the light most favorable to the non-moving party. Johnson v. Bd. of
Regents of Univ. of Ga., 263 F.3d 1234, 1242-43 (11th Cir. 2001). Summary
judgment is appropriate where “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A plaintiff cannot defeat summary judgment by relying upon conclusory
allegations or speculation. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997).
III
A. Disparate Treatment Under Title VII
Title VII of the Civil Rights Act provides that it is unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual . . . because of such individual’s race . . . [or]
sex . . . .” 42 U.S.C. § 2000e-2(a)(1). The parties agree Jones’ disparate treatment
claim is governed by the burden-shifting framework set out in McDonnell Douglas
Corp. v. Green, 93 S. Ct. 1817 (1973), which requires a plaintiff to show: (1) she
is a member of a protected class; (2) she was qualified for the position; (3) she
suffered an adverse employment action; and (4) she was treated less favorably
than a similarly situated individual outside of her protected class. Maynard v. Bd.
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of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.
2003).
Jones’ Title VII claim arises out of a single incident involving Hinton,
during which he allegedly subjected Jones to disparate treatment because of her
race. According to Jones, Hinton harshly criticized her in September 2007 for
wearing flip-flop style leather sandals in violation of AAA’s employee dress code.
Hinton allegedly said nothing to a white female co-worker sitting nearby whose
sandals also violated the dress code. The district court granted summary judgment
on this claim because Jones failed to demonstrate an adverse employment action.
Jones argues on appeal that Hinton’s reprimand itself qualifies as an adverse
employment action. However, criticisms of an employee’s performance, whether
written or oral, which do not lead to tangible job consequences, are generally not
sufficient to constitute a violation of Title VII. Davis v. Town of Lake Park, Fla.,
245 F.3d 1232, 1241 (11th Cir. 2001). Jones offers no evidence to show the
reprimand impacted the “terms, conditions, or privileges” of her job in “a real and
demonstrable way.” Id. at 1239. Accordingly, the district court did not err in
granting summary judgment on this claim.
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B. Hostile Work Environment Under Title VII
Title VII prohibits a racially or sexually hostile work environment where “a
series of separate acts . . . collectively constitute one ‘unlawful employment
practice.’” McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (citation
omitted). To establish a hostile work environment claim, an employee must show:
(1) she belongs to a protected group; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on a protected characteristic of the
employee, such as race or sex; (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 either vicarious or direct liability. Bryant
v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (citing Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)).
The district court found on summary judgment that Jones failed to show she
was subjected to harassment based on her race or gender. Without providing any
citations to the record, Jones contends that three pieces of evidence regarding
Hinton’s conduct establish that the district court erred. First, Jones notes that she
and Deserea Bright, a female African-American who worked at the AAA call
center, testified that “black women, including Ms. Jones were at a disadvantage
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due to their race.” This extraordinarily broad, unqualified observation about
racism against black women, however, has no bearing on whether Hinton harassed
Jones at the AAA call center because of her race and gender. Second, Jones states
she and Bright “testified that Hinton publicly embarrassed black women by rudely
reprimanding them for violations, while ignoring the same violations of white
women even after the white women’s violations were pointed out to him.”
Contrary to Jones’ argument, this conclusory position, unsupported by any
specifics, does not create a question of material fact precluding summary
judgment. Finally, Jones states that “Ms. Boehly, a white colleague of Ms. Jones,
observed that Hinton ‘singled out black women.’” Boehly’s vague observation,
which does not explicitly refer to harassment and contains no specific details, falls
short of creating a genuine issue of material fact as to whether Hinton harassed
Jones because of her race or gender.
Jones failed to show that Hinton harassed her because of her race or gender.
Accordingly, we affirm.
IV.
Jones claims she was removed from her AAA assignment in retaliation for
her complaints to management about the alleged racial and gender-based
discrimination she experienced. The district court granted summary judgment on
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this claim because Jones failed to show a causal relationship between the
complaints and her subsequent removal as required to establish a prima facie case.
Jones argues on appeal the district court erred because she did, in fact, establish a
prima facie case. In order to establish a prima facie case for retaliation, a claimant
must show: (1) she engaged in statutorily protected expression; (2) she suffered an
adverse employment action; and (3) there is some causal relationship between the
two events. Holifield, 115 F.3d at 1566. A plaintiff “must at least establish that
the employer was actually aware of the protected expression at the time the
employer took adverse employment action against the plaintiff.” See id. (citation
omitted) (emphasis added).
If a plaintiff makes out a prima facie case of retaliation, the burden shifts to
the defendant employer to articulate a legitimate reason for the employment
action. McDonnell Douglas, 93 S. Ct. at 1824. If the employer proffers a
legitimate, non-discriminatory reason for the action, the plaintiff must then show,
by a preponderance of the evidence, that the reason is false, see St. Mary’s Honor
Ctr. v. Hicks, 113 S. Ct. 2742, 2752 (1993), and “is a pretext for retaliation,”
Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (citation and quotation
marks omitted).
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The district court did not err in granting summary judgment on Jones’ Title
VII retaliation claim, since Jones failed to establish that her release from AAA was
causally connected to her allegations of discrimination and harassment. Jones
notes all of the reprimands and low “Quality Assurance” scores occurred after she
complained about Hinton and the male SAE employee, however, because she first
complained about Hinton, although informally, on her second day of work at
AAA, the events could not have happened in any other sequence. Moreover,
Jones’ first low “Quality Assurance” score was for the month of August 2007,
before she made her initial formal complaint about Hinton in September 2007.
Although Jones argued that April Jaques, an SAE Human Resources
manager, was the one responsible for her release from AAA, the evidence showed
SAE could only release an employee upon AAA’s request. Moreover, the
evidence demonstrated that Matt Cooper, Jones’ AAA supervisor, was the
individual who actually recommended Jones’ release, and the evidence did not
demonstrate that Cooper ever knew about Jones’ discrimination and harassment
allegations.
Even if Jones had established a prima facie case of retaliation, she failed to
demonstrate that Cooper’s legitimate reason for recommending her release—four
consecutive months of low “Quality Assurance” scores—was merely a pretext for
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retaliation. AAA presented several employees who were fired based on
unsatisfactory “Quality Assurance” scores and there was no evidence Jones’
scores were manipulated or otherwise improper. Therefore, the district court did
not err in granting summary judgment on this claim.
IV.
Jones argues that, after granting summary judgment to the defendants on her
federal claims, the district court should have dismissed the state law tort claims
without prejudice to allow them to be adjudicated in state court. Instead, the
district court exercised supplemental jurisdiction over the state law tort claims and
granted summary judgment in favor of Hinton on Jones’ battery claim and in favor
of AAA on Jones’ negligent hiring and negligent retention claims.
We review a district court’s decision regarding whether to exercise
supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(c)
for an abuse of discretion. See Lucero v. Trosch, 121 F.3d 591, 598 (11th Cir.
1997). We review a district court’s interpretation of a state statute de novo.
Blasland, Bouck & Lee, Inc. v. City of N. Miami, 283 F.3d 1286, 1294 (11th Cir.
2002).
The district court did not err in exercising supplemental jurisdiction over the
state law tort claims. Although the district court could have chosen to dismiss
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Jones’ state law claims without prejudice after granting summary judgment on the
federal claims, it did not abuse its discretion by retaining jurisdiction and ruling on
the tort claims, because: (1) the state claims involved the same
incidents—Hinton’s alleged harassment—that Jones’ federal claims were based
on; (2) there was no indication the tort claims involved complex or novel state law
issues; and (3) ruling on all of Jones’ claims at once served judicial economy. 28
U.S.C. § 1367(c); see Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1288 (11th
Cir. 2002) (citation omitted).
Moreover, the district court did not err in granting summary judgment on
these claims. Hinton’s alleged physical contact with Jones, by brushing against
her, did not constitute battery pursuant to Florida common law. City of Miami v.
Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996) (citation omitted). First, Hinton
testified that even if the contact occurred, it was accidental and innocuous, and
there was no evidence the contact was intentional, other than Jones’ conclusory
statement to that effect in her complaint. See Gatto v. Publix Supermarket, Inc.,
387 So. 2d 377, 379 (Fla. 3d DCA 1980) (citation omitted). Second, the evidence
demonstrated any contact was not offensive because Jones admitted she did not
consider the contact sexual in nature, and she did not mention the “brushing”
incident until after litigation began, even though she had complained about Hinton
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previously on several occasions. See City of Miami, 672 So. 2d at 47 (citation
omitted).
Jones’ remaining negligent hiring and negligent retention claims also fail,
because Florida law requires that those claims be based on an injury stemming
from a tort recognized by common law, and Jones’ claim were premised solely on
her battery claim. See Anderson Trucking Serv., Inc. v. Gibson, 884 So. 2d 1046,
1052 n.2 (Fla. 5th DCA 2004). Therefore, we do not address the merits of either
negligence claim.
Upon review of the record, and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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