Cargo v. Alabama, Board of Pardons & Parole Division , 391 F. App'x 753 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14615 ELEVENTH CIRCUIT
AUGUST 5, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-01065-CV-N
ANN J. CARGO,
Plaintiff-Appellant,
versus
STATE OF ALABAMA,
Board of Pardons and
Parole Division,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 5, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff Ann Cargo appeals the district court’s grant of summary judgment
in favor of Defendant State of Alabama as to her complaint alleging a hostile work
environment based on race, sex, and age, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623. After review, we discern no error
and affirm.
Cargo’s argument on appeal is unclear. The argument section of her
counseled appellate brief consists of: (1) the general legal standards concerning
summary judgment and hostile work environment claims, (2) a large block quote
containing factual allegations from her EEOC complaint, and (3) a conclusory
statement that summary judgment should have been denied because the facts in the
block quote were sufficient to create a triable issue if they were viewed in the light
most favorable to the plaintiff. Granting her brief a generous reading, it highlights
her contention that summary judgment was improperly granted against her on her
hostile work environment claim under Title VII to a degree that will we not deem
that argument waived. That argument, however, was the only argument clearly
raised and any further arguments are deemed abandoned.1
1
“[A] legal claim or argument that has not been briefed before the court is deemed
abandoned and its merits will not be addressed.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004). In order to properly raise an issue on appeal, the appellant must
fully brief that issue in her appellate brief. Id. The appellant must devote a discrete portion of
2
“We review the district court’s grant of summary judgment de novo, viewing
the record and drawing all inferences in favor of the non-moving party.” Fisher v.
State Mut. Ins. Co., 290 F.3d 1256, 1259-60 (11th Cir. 2002). Summary judgment
is appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and compels judgment
as a matter of law. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th
Cir. 2007). “There is no genuine issue of material fact if the nonmoving party fails
to make a showing sufficient to establish the existence of an element essential to
that party’s case and on which the party will bear the burden of proof at trial.”
Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). “A party opposing a
properly submitted motion for summary judgment may not rest upon mere
allegations or denials of [her] pleadings, but must set forth specific facts showing
that there is a genuine issue for trial.” Eberhardt v. Waters, 901 F.2d 1578, 1580
(11th Cir. 1990) (brackets and internal quotation marks omitted).
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). Although it does not specifically mention harassment,
argumentation to that issue.” United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
3
Title VII protects employees from being required “to work in a discriminatorily
hostile or abusive environment.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1244
(11th Cir. 1999) (en banc) (internal quotation marks omitted). “A hostile work
environment claim under Title VII is established upon proof that ‘the workplace is
permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment.’” Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,
21, 114 S. Ct. 367, 370 (1993)). “This court has repeatedly instructed that a
plaintiff wishing to establish a hostile work environment claim show: (1) that [s]he
belongs to a protected group; (2) that [s]he has been subject to unwelcome
harassment; (3) that the harassment must have been based on a protected
characteristic of the employee . . . ; (4) that the harassment was sufficiently severe
or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) that the employer is
responsible for such environment under either a theory of vicarious or of direct
liability.” Id.
In this case, Cargo has failed to establish a genuine issue of material fact as
to at least the fourth element – whether any alleged harassment was sufficiently
4
severe or pervasive.2 “Establishing that harassing conduct was sufficiently severe
or pervasive to alter an employee’s terms or conditions of employment includes a
subjective and an objective component.” Mendoza, 195 F.3d at 1246. “[T]he
following four factors . . . should be considered in determining whether harassment
objectively altered an employee’s terms or conditions of employment: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance; and (4)
whether the conduct unreasonably interferes with the employee’s job
performance.” Id. Although Cargo’s brief is hardly clear on the point, she appears
to point to several specific instances of harassing conduct: an incident wherein
Cook allegedly lied to Cargo’s supervisor by claiming Cargo changed the office
thermostat, an incident wherein Cook planned the going away party of one of
Cargo’s subordinates, an incident wherein Cargo allegedly had to sit at a secondary
table at an office lunch party, an incident wherein Cook complained that Cargo was
not assigning vehicles correctly, an incident wherein Cook made an off-color
2
It is also likely that Cargo has failed to establish a genuine issue of material fact
as to the third element – whether any alleged harassment was based on a protected characteristic.
In the quotation from her EEOC complaint in her brief, Cargo alleges that Cook targeted her
because she was “the person he had to discredit to get where he wanted to be professionally.”
That statement and other evidence indicate that any animosity between Cargo and Cook was of a
personal nature and was not based on a protected characteristic. In any event, we need not
decide that issue because her failure to create a genuine issue of material fact as to the fourth
element is sufficient to decide this case.
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comment in front of Cargo for which he apologized later in the day, and an
incident wherein Cook initiated disciplinary charges against her for not following
proper procedure in disciplining another employee. All four factors point in favor
of this conduct not being sufficiently severe or pervasive to support a hostile work
environment claim. Five or six incidents over the course of three to four years is
hardly frequent conduct. None of these incidents are severe. Instead they have the
tenor of petty office squabbles. The only conduct that might be characterized as
humiliating was the off-color comment about women made by Cook in front of
another man. The comment, however, was in no way profane or derogatory.
Moreover, Cook apologized to for the incident later that day. Finally, there is no
indication that any of this conduct interfered with Cargo’s job performance. The
record indicates that she continued to perform successfully in her desired position.
Considering the four factors, Cargo has failed to point to evidence creating a
genuine issue of material fact as to whether she suffered the severe or pervasive
harassment required to support a hostile work environment claim.
Because Cargo failed to establish a genuine issue of material fact as to one
of the elements of her claim, the district court did not err in granting summary
judgment in favor of the defendant. Accordingly, the judgment of the district court
is affirmed.
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AFFIRMED.3
3
Appellant’s request for oral argument is DENIED.
7