Batch v. Jefferson County Child Development Council , 183 F. App'x 861 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 7, 2006
No. 05-15658 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02906-CV-2-IPJ
WILLIE C. BATCH,
Plaintiff-Appellant,
versus
JEFFERSON COUNTY CHILD DEVELOPMENT COUNCIL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 7, 2006)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Willie C. Batch, an African-American male, appeals the district
court’s grant of defendant Jefferson County Child Development Council, Inc.’s
(“JCCDC”) motion for summary judgment as to his complaint alleging racial
discrimination, gender discrimination, and retaliation, pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2, 3, and 42 U.S.C. §
1981. On appeal, Batch argues that the district court erred as a matter of law in
granting JCCDC’s motion for summary judgment because it ignored evidence
supporting his prima facie case of discrimination and failed to draw reasonable
inferences in favor of him, the non-moving party. Specifically, he argues that he
presented sufficient evidence to establish that similarly situated white or female
employees were treated more favorably with respect to JCCDC’s sick leave
policies, and that JCCDC retaliated against him by lowering his performance
evaluation and relocating his workspace following notice of his EEOC charge.
We review the district court’s ruling on summary judgment de novo. Rojas
v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party is entitled to
summary judgment “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When deciding whether
summary judgment is appropriate, all evidence and reasonable factual inferences
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drawn therefrom are reviewed in a light most favorable to the non-moving party.”
Rojas, 285 F.3d at 1341-42 (citation and quotation omitted).
The same prima facie case and burden-shifting mechanisms apply to Title
VII and § 1981 discrimination claims. See Shields v. Fort James Corp., 305 F.3d
1280, 1282 (11th Cir. 2002). In order to establish a prima facie case of disparate
treatment based on race or gender discrimination, a plaintiff must show (1) that he
is a member of a protected class; (2) he was qualified for his job; (3) he suffered an
adverse employment action; and (4) his employer treated similarly situated
employees who are not members of the protected class more favorably. Rice-
Lamar v. City of Fort Lauderdale, 232 F.3d 836, 842-43 (11th Cir. 2000). With
respect to the fourth prong, “[i]n determining whether employees are similarly
situated for purposes of establishing a prima facie case, it is necessary to consider
whether the employees are involved in or accused of the same or similar conduct
and are disciplined in different ways.” Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997).
The evidence before the district court showed that three specific similarly
situated employees were docked pay when absent from work when they did not
have enough accrued leave time, or when their leave requests were not approved.
Supervisors often requested white or female employees to submit verification for
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sick leave requests. Batch was the only employee required to submit verification
for each sick leave request, however, this policy was implemented due to his
previously admitted attendance problem. Because Batch failed to show that
similarly situated white or female employees were treated more favorably with
respect to the application of JCCDC’s sick leave policy, we conclude that he did
not establish a prima facie case of race or gender discrimination.
To establish a prima facie case of retaliation forbidden by Title VII, the
plaintiff must show that: (1) he participated in an activity protected by Title VII;
(2) he suffered an adverse employment action; and (3) there is a causal connection
between the participation in the protected activity and the adverse employment
decision. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000). We
have found retaliation claims to be cognizable under § 1981.1 See Andrews v.
Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998).
Moreover, in the context of other discrimination claims, we have construed § 1981
as a parallel remedy, which may derive its principles from Title VII. See Blum v.
Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).
An adverse employment action must involve “an ultimate employment
1
Because § 1981 is a statutory remedy for claims of discrimination based on race or alienage
only, its application to Batch’s claim of retaliation is limited in that respect. See 42 U.S.C.
§ 1981(a).
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decision . . . or other conduct that alters the employee’s compensation, terms,
conditions, or privileges of employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an employee.” Gupta, 212
F.3d at 587. (Citation and quotation omitted). We have held that employee
performance evaluations, which “do not lead to tangible job consequences,” are not
sufficient to form the basis of a retaliation claim under Title VII. Davis v. Town of
Lake Park, 245 F.3d 1232, 1241 (11th Cir. 2001). “An action, which . . . had no
effect on an employee is not an ‘adverse’ action.” Gupta, 212 F.3d at 588.
Assuming arguendo that his supervisors’ discussion of Batch’s EEOC
charge affected his performance evaluation, we conclude that the lowered
performance evaluation did not result in a change in the terms or conditions of
Batch’s employment. Batch was not terminated, demoted, or reassigned, and he
continued to receive the same salary. Because Batch failed to demonstrate that he
suffered an adverse employment action, he did not establish a prima facie case of
retaliation.
For the above stated reasons, we affirm the district court’s grant of
summary judgment.
AFFIRMED.
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