Howard Leonard Taylor v. James G. Roche , 196 F. App'x 799 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 12, 2006
No. 05-16661 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-21204-CV-PAS
HOWARD LEONARD TAYLOR,
Plaintiff-Appellant,
versus
JAMES G. ROCHE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 12, 2006)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Howard Taylor, an African-American male, brought this law suit agains t mes
Ja
Roche in his official capacity as Secretary of the Department of the Air Force,
claiming discrimination on the basis of race and color and retaliation, in violation
of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2,
2000e-3. His complaint1 contained five counts. Count I alleged that because of his
race and color he was not selected for a lateral transfer to the position of Quality
Assurance Weapons Inspector; Count II alleged that for the same reason he was
not selected for promotion to the position of Weapons Loading Supervisor. Counts
III and IV alleged that after he filed a formal complaint of discrimination with the
Secretary, the Air Force retaliated against him by subjecting him to adverse
employment actions (Count III) and by creating a hostile work environment (Count
IV). Finally, in Count VI, he alleged that by compelling him to take disability
retirement, the Air Force constructively discharged him.2
The Secretary’s answer to Taylor’s complaint denied liability and alleged
that the challenged employment decisions were made for legitimate non-
discriminatory reasons. Following discovery, the Secretary moved the district
court for summary judgment. The court granted his motion, and Taylor took this
appeal.
1
The complaint before us is Taylor’s amended complaint.
2
The amended complaint did not include a Count 5.
2
Taylor does not appeal the court’s disposition of Count I. Rather, he seeks
the vacation of summary judgment on Counts II, III, IV and VI. We first address
Count II, the failure to promote claim.
Title VII prohibits employers from discriminating “against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Where a plaintiff attempts to prove discrimination by
circumstantial evidence, his claims are subject to the burden shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). Under that framework, the plaintiff must first create an
inference of discrimination by establishing a prima facie case. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the plaintiff successfully creates
such inference, the burden shifts to the employer to articulate a legitimate
nondiscriminatory basis for the employment action. Vessels v. Atlanta Indep. Sch.
Sys., 408 F.3d 763, 767 (11th Cir. 2005). If the employer meets this burden, the
plaintiff must show by a preponderance of the evidence that the proffered reasons
were a pretext for the alleged discrimination. Id. at 768.
In the context of a promotion, “[a] plaintiff must show that the disparities
between the successful applicant’s and [his] own qualifications were ‘of such
3
weight and significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over the plaintiff.’” Brooks v.
County Commission, 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting Cooper v.
Southern Co., 390 F.3d 695, 732 (2005), as approved by Ash v. Tyson Foods, Inc,
126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006).
The Secretary concedes that Taylor established a prima facie case of
discrimination on Count II. Notwithstanding that concession, we find no error in
the district court’s determination that Taylor failed to show that the Air Force’s
proffered legitimate, nondiscriminatory reasons for failing to promote him were
pretextual. First, Taylor did not meet his burden of showing that the disparities
between his qualifications and those of the candidate who was promoted were so
significant that no reasonable person could have chosen the other individual. It is
undisputed that the individual who received the promotion spent more than ten
years as a weapons loader and gained experience in the intricacies of the F-16
aircraft while working as a Crew Chief. Second, Taylor has provided no evidence
that the Air Force did not believe that the individual who was promoted was
qualified for the position. Taylor admitted that both and he and the other candidate
were on the certified list of qualified candidates that the Air Force decision-maker
received. Therefore, it was reasonable for the decision-maker to believe that all the
4
candidates on the list were eligible for the position. Finally, Taylor failed to show
that the Air Force’s assertion that his poor attitude during his interview was a
pretext for discrimination. We therefore affirm the grant of summary judgment on
Count II. We turn, then, to the claims of retaliation, beginning with Count III.
Title VII prohibits an employer from retaliating against an employee
“because [the employee] has opposed any practice made an unlawful employment
practice . . . or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this sub-chapter [of
Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation
under the McDonnell Douglas framework, a plaintiff must show (1) participation
in protected activity; (2) an adverse employment action; and (3) a causal
connection between the two. Cooper, 390 F.3d at 740. To establish an adverse
employment action, “an employee must show a serious and material change in the
terms, conditions, or privileges of employment . . . [,] as viewed by a reasonable
person in the circumstances.” Davis v. Town of Lake Park, Florida, 245 F.3d
1232, 1239 (11th Cir. 2001) (emphasis in original). A “plaintiff must show that a
reasonable employee would have found the challenged action materially adverse.”
Burlington N. & Santa Fe Ry. Co. v. White, __ U.S. __, 126 S.Ct. 2405, 2415
(2006) (retaliation case). The Supreme Court noted that it phrased the standard in
5
“general terms because the significance of any given act of retaliation will often
depend upon the particular circumstances. Context matters.” Id. For example, “[a]
schedule change in an employee’s work schedule may make little difference to
many workers, but may matter enormously to a young mother with school age
children.” Id. A transfer that results in a diminished opportunity for increases in
salary constitutes an adverse employment action. See Bass v. Board of
Commissioners of Orange County, Fla., 256 F.3d 1095, 1118-19 (11th Cir. 2001).
To establish a causal connection between participation in a protected activity
and adverse employment action, “a plaintiff need only show that the protected
activity and the adverse action were not wholly unrelated.” Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (quotations omitted). A
substantial delay between the protected activity and the negative employment
action, where there is no other evidence of causation, is insufficient to establish a
causal connection. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74,
121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001).
In the case at hand, we conclude that the district court erred in concluding
that Taylor failed to establish a prima facie case of retaliation based on the denial
of Taylor’s shift-change request.3 First, Taylor’s supervisor’s repeated refusal to
3
After he filed his EEO claim of discrimination, Taylor repeatedly asked his supervisor
to transfer him to the night shift. He did not receive the transfer. He claims that his supervisor’s
6
transfer Taylor to the night shift constituted an adverse employment action. In
considering the context, as we must under Burlington, and drawing all inferences
in Taylor’s favor, a reasonable worker who (1) had experienced a tense work
environment with a particular supervisor; (2) had requested a return to the shift he
previously worked before serving abroad in order to take his children to school and
avoid a tense environment; and (3) whose request was denied for more than one
year, would have considered his employer’s actions a significant change in the
terms and conditions of employment.
In addition, Taylor established a causal connection between his supervisor’s
failure to transfer him to the night shift and his EEO complaint because when
Taylor asked for a shift change, the supervisor commented that Taylor should have
thought about the consequences before filing his complaint, which suggests that his
supervisor’s decision was not wholly unrelated to the filing. Finally, there is a
genuine issue of material fact as to the supervisor’s reason for refusing to transfer
Taylor to the night shift in 2001. The supervisor asserted that there were no
openings available in 2001, but Taylor provided evidence, which, if viewed in the
light most favorable to him, shows that he was ultimately transferred after his
attorney wrote a letter to the Air Force and a Judge Advocate ordered that he be
refusal to grant it was in retaliation for his filing of the claim of discrimination.
7
transferred.
We conflate counts IV and VI because both counts allege that Taylor was
subjected to a hostile work environment and both seek essentially the same relief.
Count IV alleges that Taylor was retaliated against via a hostile work environment;
Count IV alleges that he was constructively discharged due to such hostile work
environment and because the Air Force compelled him to take disability
retirement. As the district court observed, the real reason for Taylor’s
discharge/retirement was his “extremely serious 20-year old injury” that Taylor
admitted was causing him “excruciating” pain. A constructive discharge only
occurs when the employer imposes working conditions that are “so intolerable that
a reasonable person in [the employee’s] position would have been compelled to
resign.” Fitz v. Pugmire, 348 F.3d 974, 977 (11th Cir. 2003).
Here, the district court committed no error in rejecting the Counts IV and VI
claims. Taylor adduced no evidence indicating that his working conditions were so
intolerable that a reasonable person in his position would have been compelled to
resign. And it is clear that he retired due to the injury the district court observed.
In sum, we affirm the district court’s judgment on Counts II, IV and VI. We
vacate the court’s judgment on Count III and remand that count for further
proceedings.
SO ORDERED.
8