Case: 19-11196 Date Filed: 02/06/2020 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11196
Non-Argument Calendar
________________________
D.C. Docket No. 9:16-cv-80811-KAM
KEITH A. THOMPSON,
Plaintiff - Appellant,
versus
SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2020)
Before MARTIN, ROSENBAUM, and MARCUS, Circuit Judges.
PER CURIAM:
Keith Thompson, plaintiff pro se, alleged he suffered discrimination in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
Case: 19-11196 Date Filed: 02/06/2020 Page: 2 of 11
§ 2000e et seq., by his employer, the United States Department of Veterans Affairs
(the “VA”). The Secretary of the VA (the “Secretary”) moved for dismissal or, in
the alternative, summary judgment. The district court granted the Secretary’s
motion for summary judgment and entered judgment for the Secretary. Thompson
appeals from the grant of summary judgment. Following careful review, we
affirm.
I.
A.
Thompson is an African American man of Bahamian descent who was
approximately 51 years old at the time of the events in his complaint. Thompson
was employed by the VA for two separate periods, both of which are crucial to
understanding this appeal.
Thompson was first employed by the VA as a medical support clerk. He
resigned from that position in January 2011 for medical reasons. Less than a year
later, Thompson attempted to get rehired by the VA. During one of his interviews
to get rehired, Thompson was allegedly “duplicitously recorded” without his
consent. In September 2012, Thompson filed an internal equal employment
opportunity (“EEO”) complaint based on that recording, and the VA ultimately
entered into an agreement to rehire Thompson as a medical support assistant
starting in November 2012.
2
Case: 19-11196 Date Filed: 02/06/2020 Page: 3 of 11
Thompson began work as a medical support assistant on November 18,
2012. Thompson was assigned to the “phone room,” which is where he claims
“people with issues, mental, physical and discipline problems are sent.” Jean
Brooks, Chief of Medical Ambulatory Services, testified that she assigned
Thompson to the phone room to give him a “fair shot.” The supervisors there did
not know about his prior complaint and had not worked with him before, so the
idea was they would not have any preconceived notions about him. But Thompson
did not like working in the phone room because all calls there are recorded. This
made him “paranoid” and reminded him of the unconsented-to recording that led to
his first EEO complaint. Thompson complained to Brooks about his placement in
the phone room and she explained why she had put him there.
As the district court set forth, there were several incidents between
Thompson’s date of rehire and the end of 2015 that he perceived to be unfair and
hostile:
(1) In December 2012, one of Thompson’s supervisors, Catherine
Bendig, told him that another VA employee felt that Thompson had
not paid enough attention during a training class. Thompson said this
claim was “ridiculous” and that it was “reprisal.” Thompson and
Brooks ultimately met to discuss this issue, and Brooks told him that
Bendig was just trying to give Thompson feedback without intending
to be offensive.
(2) Also in December 2012, another one of Thompson’s supervisors,
Lorraine Giglio, yelled at him in front of other employees for failing
to sign out of the computer phone system. Thompson complained to
Bendig about this and she convened a meeting between her,
3
Case: 19-11196 Date Filed: 02/06/2020 Page: 4 of 11
Thompson, and Giglio. Giglio apologized to Thompson and said she
had not realized she had spoken loudly.
(3) In January 2013, Thompson objected to being assigned to sit in the
trainee seat, which was directly behind Giglio. He also said this seat
was too close to the communal refrigerator, microwave, and table for
section events. Thompson complained to Bendig, so she moved the
microwave and arranged for the refrigerator to be moved too. In the
end, Thompson asked Bendig to leave the refrigerator where it was.
He also retrieved the microwave and put it back in its original
location. Eventually Thompson was moved to a permanent desk in
the phone room.
(4) In March 2013, Thompson’s first-line supervisor, Maria Padilla,
verbally counseled Thompson for combining his fifteen-minute break
with his thirty-minute lunch break, a practice disallowed by the VA.
Thompson was upset because another supervisor had told him he
could combine his breaks that day. Thompson did not know about
any other employees being allowed to combine their breaks in that
way.
(5) In August 2013, Thompson asked to use annual leave in lieu of sick
leave because he did not have enough sick leave built up to cover a
full day. This request was denied because several other individuals
were on leave. Brooks designated Thompson as being on “leave
without pay AWOL,” which can sometimes lead to discipline but did
not in this case.
(6) In June 2015, Thompson discovered that Padilla had placed a
“magnifying mirror” on her desk that was aimed at the back of his
chair and head. Thompson believed Padilla had done this to monitor
him. Padilla told VA investigators she installed the mirror to be able
to see if someone was standing behind her, and in any case she was
not able to see Thompson in the mirror. Thompson complained about
the mirror to Bendig and Norm Williams, a VA EEO supervisor, and
requested a transfer out of the phone room. Thompson’s request was
approved, but before he could move to another department he was
required to make two separate “moves” within a two-week period. A
coworker, Jerome Darville, who requested a transfer the same time as
Thompson had his request approved “without delay.”
4
Case: 19-11196 Date Filed: 02/06/2020 Page: 5 of 11
(7) Thompson had other concerns with Padilla, including that she enlisted
a coworker, Kristie Moquet, to spy on Thompson and monitor his
workplace activities. Thompson’s evidence of this is that Moquet
constantly sanitized her hands near his desk and that, on one occasion,
she followed him into a bathroom.
(8) Thompson started working in the Mental Health Department in
September 2015. Thompson didn’t like this either, so he requested a
transfer back to the phone room, where Bendig and Padilla no longer
worked. Thompson soon thereafter returned to work in the phone
room, where he remained until his resignation in February 2017.
(9) In December 2015, Thompson learned that a non-manager named
Trellis Jackson had been allowed to work overtime. Thompson had
previously requested to work overtime but was told that overtime was
reserved for managers and supervisors.
In February 2013, Thompson filed an EEO complaint alleging that the
incidents that occurred in late 2012 and early 2013 were retaliation for his
September 2012 complaint. Thompson later added allegations of discrimination on
the basis of national origin and age. The VA Office of Resolution Management
investigated the complaint and concluded that Thompson had failed to make out a
case of disparate treatment, retaliation, or hostile work environment. The VA
issued a final dismissal of his complaint in February 2016 and granted him a right
to sue in federal court. Thompson filed another EEO complaint in July 2015
alleging retaliation for his September 2012 complaint. The VA issued a final
decision in July 2016 rejecting Thompson’s claims of discrimination and granting
him a right to sue in federal court.
5
Case: 19-11196 Date Filed: 02/06/2020 Page: 6 of 11
Thompson filed suit in the U.S. District Court for the Southern District of
Florida on May 24, 2016. He alleged unlawful retaliation, disparate treatment, and
hostile work environment in violation of Title VII. The Secretary moved to
dismiss for failure to exhaust administrative remedies, and in the alternative for
summary judgment on the ground that Thompson could not succeed in his
discrimination claims. The district court granted the Secretary summary judgment.
II.
“We review the grant of a motion for summary judgment de novo and
resolve all reasonable factual doubts in favor of the non-movant.” Mora v. Jackson
Mem’l Found., Inc.,
597 F.3d 1201, 1203 (11th Cir. 2010) (per curiam). The
Secretary, “as the party moving for summary judgment, had the burden of
demonstrating that there were no genuine issues as to any material fact, and that it
was entitled to judgment as a matter of law.” Mazzeo v. Color Resolutions Int’l,
LLC,
746 F.3d 1264, 1266 (11th Cir. 2014).
III.
A. RETALIATION
Title VII prohibits retaliation against an employee for opposing a
discriminatory employment practice, “or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a). “To establish a prima facie case
6
Case: 19-11196 Date Filed: 02/06/2020 Page: 7 of 11
of retaliation, plaintiffs must prove that: (1) they engaged in statutorily protected
conduct; (2) they suffered an adverse employment action; and (3) the adverse
action was causally related to the protected expression.” Trask v. Sec’y, Dep’t of
Veterans Affairs,
822 F.3d 1179, 1193–94 (11th Cir. 2016). “Once a plaintiff has
established a prima facie case, the employer then has an opportunity to articulate a
legitimate, non-retaliatory reason for the challenged employment action.”
Id.
at 1194 (quotation marks omitted). “The ultimate burden of proving by a
preponderance of the evidence that the reason provided by the employer is a
pretext for prohibited, retaliatory conduct remains on the plaintiff.”
Id. (quotation
marks omitted).
To make out a claim of retaliation, “an employee must show a serious and
material change in the terms, conditions, or privileges of employment.”
Id. at 1195
(quotation marks omitted). The Supreme Court has told us that “petty slights or
minor annoyances” are not enough to satisfy this requirement. See Burlington N.
& Santa Fe Ry. Co. v. White,
548 U.S. 53, 68,
126 S. Ct. 2405, 2415 (2006). A
work reassignment that “resulted in no decrease in pay or grade” does not
constitute a material change in employment.
Trask, 822 F.3d at 1194.
Thompson has not shown that any of these actions rose to the level
necessary to support a prima facie case of retaliation. At the outset, Thompson has
not shown any serious or material changes constituting adverse action. Even his
7
Case: 19-11196 Date Filed: 02/06/2020 Page: 8 of 11
assignment to the phone room—the closest thing he alleged to an actual alteration
in the terms and conditions of his employment—was not sufficiently adverse. At
most, Thompson seems to characterize this reassignment as a loss of prestige or
responsibility, but with no allegation of decreased pay or grade. See
id.
Beyond that, even if we assume his assignment to the phone room was a
prima facie example of retaliation, Thompson has not rebutted the Secretary’s
argument that there was a legitimate, non-retaliatory reason for assigning him
there. As the district court recognized, it was reasonable for the VA to have
assigned Thompson to the phone room to give him a fresh start with new
supervisors and coworkers. We are satisfied this reason was not mere pretext for
invidious retaliation.
B. RETALIATORY HOSTILE WORK ENVIRONMENT
This circuit recognizes a cause of action under Title VII for retaliatory
hostile work environment. Gowski v. Peake,
682 F.3d 1299, 1311–12 (11th Cir.
2012) (per curiam). To prevail on a retaliatory hostile work environment claim, a
plaintiff must show that: (1) he engaged in protected activity, (2) after doing so, he
was subjected to unwelcome harassment, (3) his protected activity was a “but for”
cause of the harassment, and (4) the harassment was sufficiently severe or
pervasive to alter the terms of his employment. See
id. at 1311. The fourth prong
of this inquiry includes both “an objective and a subjective component,” requiring
8
Case: 19-11196 Date Filed: 02/06/2020 Page: 9 of 11
courts to consider the frequency and the severity of the conduct, whether it is
threatening or humiliating, and whether it interferes with the employee’s job
performance. See id at 1312. The allegedly harassing acts must be considered “in
context, not as isolated acts.” See Mendoza v. Borden, Inc.,
195 F.3d 1238, 1246
(11th Cir. 1999).
Like with Thompson’s claim for retaliation, his claim for retaliatory hostile
work environment fails because he has not shown he suffered sufficiently severe or
pervasive harassment. As the district court rightly observed, the actions Thompson
complains about “are the stuff of ordinary office life and the type of petty
squabbling which is fairly typical between employees working in close quarters.”
Considered as a whole, these “petty and trivial actions” are insufficient to make out
a claim of harassment. See Crawford v. Carroll,
529 F.3d 961, 973 n.13 (11th Cir.
2008) (citing
Burlington, 548 U.S. at 71, 126 S. Ct. at 2417).
C. DISPARATE TREATMENT
To make out a prima facie case of discrimination a plaintiff must show (1)
he belongs to a protected class; (2) he was qualified to do the job; (3) he was
subjected to an adverse employment action; and (4) his employer treated similarly
situated employees outside his class more favorably. Lewis v. City of Union City,
934 F.3d 1169, 1185 (11th Cir. 2019). Even if the plaintiff does not produce a
similarly situated comparator, he “will always survive summary judgment if he
9
Case: 19-11196 Date Filed: 02/06/2020 Page: 10 of 11
presents circumstantial evidence that creates a triable issue concerning the
employer’s discriminatory intent.”
Id. (alteration and quotation marks omitted).
“[A] convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination . . . may be shown by evidence that demonstrates, among
other things, (1) suspicious timing, ambiguous statements, and other bits and
pieces from which an inference of discriminatory intent might be drawn,
(2) systematically better treatment of similarly situated employees, and (3) that the
employer’s justification is pretextual.”
Id. (alteration adopted and quotation marks
omitted).
Thompson’s claim of discrimination founders for a few reasons. First, as the
Secretary notes in his brief, Thompson has not alleged he experienced
discrimination because of his membership in a protected class. He has disclaimed
reliance on age and national origin as the cause for the discrimination he alleges,
even though these were the two non-retaliatory bases he asserted in his 2013 EEO
complaint. Additionally, as discussed above, he has not shown that he was
subjected to any adverse employment actions. But even if Thompson had made
such a showing, he has not produced a similarly situated comparator who was
treated better, nor has he presented a convincing mosaic of circumstantial evidence
showing he experienced discrimination. Thompson points to two coworkers as
comparators: Jerome Darville, who requested a transfer out of the phone room the
10
Case: 19-11196 Date Filed: 02/06/2020 Page: 11 of 11
same time Thompson did; and Trellis Jackson, the non-manager who was allowed
to work overtime. But as best we can tell, Thompson does not allege that either
coworker was outside either of his protected classes. This dooms his ability to rely
on either of them as a comparator. See Smith v. Lockheed-Martin Corp.,
644 F.3d
1321, 1326 (11th Cir. 2011). Nor can Thompson use the mosaic theory of
discrimination, as the allegations in his complaint fall well short of “systematically
better treatment of similarly situated employees.” See
Lewis, 934 F.3d at 1185.
D. DISCRIMINATORY HOSTILE WORK ENVIRONMENT
“To establish a hostile work environment claim under Title VII, a plaintiff
must show that the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment.”
Trask, 822 F.3d at
1195 (alteration adopted and quotation marks omitted). A plaintiff must “show the
hostile treatment was based on [his] protected status.”
Id. at 1196.
Thompson has not pointed us to any comments or actions that were overtly
“related to [his] protected characteristics,” nor has he presented us with evidence
that the “alleged hostility was in any way motivated by a discriminatory animus
regarding” his age or national origin. See
id. Without either of these, his claim of
a discriminatory hostile work environment cannot succeed.
AFFIRMED.
11
