Deirdre Baker v. JEA ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11335
____________________
DEIRDRE BAKER,
Plaintiff-Appellant,
versus
JEA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00889-HES-PDB
____________________
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2 Opinion of the Court 22-11335
Before BRANCH and LUCK, Circuit Judges, and SMITH, District ∗
Judge.
PER CURIAM:
Deirdre Baker, proceeding pro se, initiated this lawsuit
alleging that her former employer, JEA (the Jacksonville Electric
Authority), discriminated against her on the basis of her race.
Baker, who is black, claimed that she was wrongfully terminated
on account of her race and was retaliated against because of her
complaints of racial discrimination in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a), 3(a).
Following cross-motions for summary judgment, the district court
entered judgment in favor of JEA. Baker—still proceeding pro se—
appealed. After careful review, and with the benefit of oral
argument, we affirm.
I. Background 1
JEA, a water, and sewer utility company located in
Jacksonville, Florida, employs both appointed and civil service
employees. 2 Civil service employees are subject to the City of
∗
Honorable Rodney Smith, United States District Judge for the Southern
District of Florida, sitting by designation.
1 We review de novo a district court’s rulings on cross-motions for summary
judgment, and we view the facts in the light most favorable to the nonmoving
party on each motion. James River Ins. Co. v. Ultratec Special Effects Inc., 22 F.4th
1246, 1251 (11th Cir. 2022).
2 The City of Jacksonville Charter defines JEA as an “independent agenc[y]” of
the City. Jacksonville, Fla., Charter § 18.07(d). The Florida legislature
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Jacksonville’s Civil Service Rules and Regulations and are entitled
to certain employment protections, while appointed employees are
essentially at-will employees who do not enjoy the same
protections as civil service employees. Those appointed employees
who previously served in civil service positions are permitted to
revert to their civil service positions in lieu of termination in the
event of performance issues. Baker held various civil service
positions at JEA until she filled the appointed position of Financial
Analyst Water/Wastewater (“W/WW”) Operations in August
2015. In this new position, Baker was supervised by Melinda Ruiz-
Adams, the Manager of Business Operations, who was in turn
supervised by Carole Smith, the director of W/WW Asset
Management and Performance.
In October 2018, JEA began its annual process of goal
setting, requiring all employees, including Baker, to submit
personal goals and objectives (also called “job factors”) for the
upcoming year. Those goals and objectives were used to set criteria
by which the employees would be evaluated by their supervisors.
Ruiz-Adams reviewed Baker’s initial submission of her job factors
“created and established” the JEA by statute as a “body politic and corporate”
to exercise “all powers with respect to electric, water, sewer, natural gas and
such other utilities which are now, in future could be, or could have been but
for this Article, exercised by the City of Jacksonville.” Id. § 21.01 (citing
statutes creating the JEA). Thus, JEA is a governmental entity created by the
Florida legislature, and it acts primarily as the City’s agent in providing utility
services. We take judicial notice of the Charter and ordinances of the City of
Jacksonville as they are “not subject to reasonable dispute.” Fed. R. Evid.
201(b).
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and determined that the goals Baker submitted were so easily
achievable that they amounted to the bare minimum required
under Baker’s job description. Accordingly, Ruiz-Adams rejected
Baker’s job factors and initiated a series of discussions regarding
what acceptable goals and objectives would look like. Ruiz-Adams
also sent Baker a draft of acceptable job factors for Baker to use as
a guide. Baker, however, did not adjust her job factors properly and
failed to comply with Ruiz-Adams’s directions.
Baker then met with Robert Mack, the Director of
Organizational Effectiveness and Payroll, to discuss the goal-setting
process, but she still refused to input appropriate job factors
following that meeting. Eventually, Ruiz-Adams sent an email to
Baker instructing her to submit the job factors provided by
management and informing her that any refusal to do so would be
considered insubordination. Baker responded two days later and
informed Ruiz-Adams that she refused to follow the instructions.
Throughout the goal-setting process and consultation with
Ruiz-Adams, Baker made two complaints to JEA management.
First, during her initial meeting with Ruiz-Adams, Baker
complained about an alleged pay disparity between herself and
Ruth Remsen (a white employee who was paid more than Baker).
In response, JEA Human Resources conducted a formal job audit
to determine whether Baker and Remsen were performing the
same tasks and whether Baker was compensated according to the
correct pay grade. The results of the audit showed that, while
Baker’s assigned duties “overlap[ped]” with Remsen’s, Remsen’s
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role had a “broader scope of duties” and “higher experience
requirements.” 3 Ultimately, the audit results demonstrated that
Baker did not perform the same tasks as Remsen and that Baker
was properly compensated.
Meanwhile, Baker was placed on a Manager Support
Program (“MSP”), which was a performance improvement plan
giving her notice of unacceptable performance. Under the MSP, if
Baker did not “make the required changes, termination from
employment [would] follow due to the serious nature and
consequences of [her] non-compliance.”
Second, approximately 11 days after lodging her first
complaint, Baker filed a complaint with JEA’s Labor Relations
Department, alleging that Ruiz-Adams and Smith were
discriminating against her and harassing her by not accepting her
goals and objectives. Baker presented information purportedly
showing “ongoing attacks, threats[,] and bullying tactics”
stemming from the goal-setting process. After interviewing Baker,
Ruiz-Adams, Smith, and another individual supervised by Ruiz-
Adams, Labor Relations’s “investigation revealed . . . no evidence
to support a claim of bullying or discrimination,” and offered Baker
feedback that she “need[ed] to be more open to constructive
criticism and work to establish effective and productive working
relationships with peers and upper level management.”
3 At the time of the audit, Baker had 17 years’ experience at JEA compared to
Remsen’s 30 years’ experience.
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Baker eventually entered her job factors as required by the
MSP but, according to Smith, “the issues of [Baker’s]
insubordination and [her] challenging interactions with others
continued.” These issues culminated in Baker’s dismissal in June
2019. A new vice president of W/WW had requested certain
information (unrelated to Baker’s job factors) be provided to him
in a specifically formatted spreadsheet, and Baker was responsible
for collecting and entering this information. However, according
to Smith, Baker “refused to comply with the new directions from
management,” having been asked multiple times to ensure
compliance with the spreadsheet and failing to do so “despite . . .
counseling and direct instruction.”
On June 7, 2019, several minutes before a meeting with the
vice president, Smith approached Baker about the spreadsheet.
According to Smith, Baker had been told “several times” that the
spreadsheet she prepared was not properly formatted and that
Baker was “continually challenging and difficult when asked to
change how things were done or [how to] perform certain tasks.”
Baker, for her part, recounted her exchange with Smith somewhat
differently. Baker testified that Smith was “close to [Baker’s] face,”
told Baker that she wanted the specific spreadsheet, “flung the
paper in [Baker’s] face[,] . . . turned around, . . . slung her hair and
. . . walked out.” Following that meeting, Baker sent an email on
June 18, 2019, to Smith, copying Human Resources and Labor
Relations. She stated that she wished to address Smith’s “abrupt
and very abrasive visit to [Baker’s] office,” and expressed that she
would not “be threatened, intimidated or harassed.” She also
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questioned why Smith acted with “hostility” despite Baker’s work
product “serv[ing] the purpose/person in which it was intended.”
On June 27, 2019, Ruiz-Adams met with Baker and, because
Baker’s conduct and performance had not improved following the
implementation of the MSP, Ruiz-Adams offered Baker the option
of “revert[ing] back to her previous civil service position.” She also
informed Baker that if she chose not to revert, she would be
terminated. The following day, Baker sent an email to the director
of JEA’s Labor Relations Department and Human Resources
informing them that she chose not to revert and claiming that she
had been harassed and retaliated against by Smith and Ruiz-Adams,
alleging that they had “conspired and consulted against [her] with
conflicting/contradicting directives to threaten [her] with
insubordination.” Baker was terminated several hours later.
Baker sued JEA on August 7, 2020, asserting causes of action
for employment discrimination, retaliation, and hostile work
environment under Title VII. She amended her complaint twice,
filing the operative complaint on February 5, 2021. During
discovery, on September 28, 2021, Baker filed a motion for
summary judgment. In response, JEA then moved for summary
judgment and responded to Baker’s motion for summary
judgment.4 Following full briefing, the district court granted JEA’s
motion and denied Baker’s.
4 Before filing its motion for summary judgment, the magistrate judge granted
JEA’s motion for an extension of time to file a response to Baker’s motion,
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The district court first addressed Baker’s race discrimination
claim, which centered on her allegation that Remsen, a white
employee, was paid more than Baker despite performing identical
work. Using the framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), the district court determined that
Baker could not make a prima facie case of discrimination because
Remsen was not an adequate comparator: Pursuant to the job
audit conducted following Baker’s claim of pay disparity, Remsen
and Baker did not perform identical work and thus they were not
similarly situated for purposes of Title VII. The district court noted
that even if Baker had made out a prima facie case, she had not
pointed to any record evidence that JEA’s reasons for terminating
her were pretextual.
With respect to Baker’s retaliation claim, the district court
concluded that it failed as a matter of law because the purportedly
protected activities—Baker’s two complaints of pay disparity and
hostile work environment made in December 2018—were not
temporally proximate to Baker’s termination in June 2019. But
“[e]ven if there were a connection between” those complaints and
Baker’s termination, the district court concluded that Baker’s
“intervening misconduct” “severed” that connection. The district
court in a footnote also discussed Baker’s complaint sent via email
on June 28, 2019, (the same day as her termination), noting that by
that point it was already determined Baker would be fired if she
over Baker’s objection. Baker filed a motion for relief from the magistrate
judge’s order granting JEA an extension, which the magistrate judge denied.
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chose not to revert and thus her termination “could not have [been]
in retaliation for the complaint.” But the district court did not
discuss Baker’s other complaints made in February 2019 or on June
18, 2019.
Lastly, regarding Baker’s hostile work environment claim,
the district court determined that the actions taken by JEA over a
period of six months were not sufficiently severe or pervasive to
constitute a hostile work environment.
Baker filed a motion for relief from the district court’s
summary judgment order, which the district court denied. Baker
timely appealed.
II. Discussion
Baker raises three issues on appeal. First, she argues that the
district court misapplied the burden-shifting standard set forth in
McDonnell Douglas. Second, she argues that she established a prima
facie case of a racially hostile work environment. Third, she argues
that she established a prima facie case of retaliation.5 We address
each in turn.
5 Baker also challenges several rulings granting JEA extensions of time by the
magistrate judge during summary judgment briefing. However, we lack
jurisdiction to review these rulings because Baker did not appeal them to the
district court. United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980) (stating
that “[a]ppeals from the magistrate’s ruling must be to the district court,” and
that we lack jurisdiction to hear appeals “directly from federal magistrates”);
United States v. Schultz, 565 F.3d 1353, 1359-62 (11th Cir. 2009) (applying Renfro
where a magistrate judge issued an order on a non-dispositive issue, a party
failed to object to the order, and the same party subsequently appealed from
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A. Race discrimination
First, Baker takes issue with the district court’s application
of the McDonnell Douglas framework in assessing her Title VII race
discrimination claim. She contends that she was not required to
satisfy that framework, but that, in any event, she did so by putting
forth sufficient evidence to prove a Title VII violation. However,
Baker has waived her challenge on this issue because she failed to
raise it below in response to JEA’s motion for summary judgment
and, on appeal, she has failed to challenge the district court’s
determination that JEA put forth a non-pretextual reason for
Baker’s termination.
This Court reviews de novo a district court’s grant of
summary judgment. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253,
1263 (11th Cir. 2010). Under Federal Rule of Civil Procedure 56(a),
a district court shall grant summary judgment “if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” In
determining whether the movant has met this burden, courts must
view all the evidence and make all reasonable inferences in favor
of the nonmoving party. Chapman v. AI Transp., 229 F.3d 1012, 1023
(11th Cir. 2000) (en banc).
the final judgment). As for Baker’s challenges to the district court’s discovery
extensions, a broad grant of authority is given to district courts in managing
their dockets, especially with respect to pre-trial activities. See, e.g., Smith v.
Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014). We see nothing that
suggests the district court abused its discretion with these extensions.
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Moreover, to obtain reversal of a district court judgment
that is based on multiple, independent grounds, an appellant must
convince this Court that every stated ground for the judgment
against her is incorrect. Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014). An appellant’s failure to challenge
one of the grounds on which the district court based its judgment
deems the challenge abandoned on appeal, “and it follows that the
judgment is due to be affirmed.” Id. We may also decline to
consider challenges that were not raised by an appellant in
opposition to a motion for summary judgment to the district court
below. See, e.g., Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265,
1274 (11th Cir. 2021) (declining to consider an appellant’s Title VII
disparate treatment claim because he did not raise it in his
summary judgment briefing in the district court).
Title VII prohibits employers from discriminating against an
employee “because of” her race. 42 U.S.C. § 2000e-2(a). Where a
plaintiff relies upon circumstantial evidence to make out a Title VII
discrimination claim, we utilize the burden-shifting framework
established by the Supreme Court in McDonnell Douglas. Chapter 7
Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012).
Under that framework, the plaintiff bears the initial burden to
establish a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. To do so, “a plaintiff must show (1) she belongs to
a protected class; (2) she was qualified to do the job; (3) she was
subjected to adverse employment action; and (4) her employer
treated similarly situated employees outside her class more
favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
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“[A] plaintiff must show that she and her comparator[] are similarly
situated in all material respects” for purposes of the fourth
McDonnell Douglas step. Lewis v. City of Union City, 918 F.3d 1213,
1224 (11th Cir. 2019) (quotation omitted).
If a plaintiff establishes a prima facie case of discrimination,
and the employer articulates a legitimate, nondiscriminatory
reason for its action, the employee then bears the burden to show
that the employer’s reason is pretextual. McDonnell Douglas, 411
U.S. at 802–04.
In opposition to JEA’s motion for summary judgment, Baker
did not challenge the application of the McDonnell Douglas burden-
shifting framework, despite JEA’s reliance upon it. Additionally,
on appeal, Baker does not challenge another independent ground
for the district court’s summary judgment ruling: that she failed to
put forth any evidence that JEA’s justification for her termination
was pretextual. Therefore, we conclude that Baker has waived her
challenge to the district court’s grant of summary judgment in
favor of JEA on Baker’s Title VII race discrimination claim and we
thus affirm.
However, even if she did not waive her challenge, her claim
for race discrimination would fail on the merits because Baker has
not identified a valid comparator. Remsen, to whom Baker points
as a possible comparator, worked at JEA for thirteen more years
than Baker and had different duties than Baker (despite sharing
some work responsibilities with Baker). Remsen is therefore not a
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comparator for purposes of Baker’s prima facie case of race
discrimination.
B. Hostile work environment
Baker argues that, contrary to the district court’s conclusion,
she established a prima facie case of a hostile work environment.
She contends that she was subject to harassment and a hostile work
environment from October 2018 through June 2019, that Ruiz-
Adams provided her with “discriminatory job factors” during the
goal-setting process, and that she experienced work interferences
and “[w]ork related threat[s].” However, she does not make any
specific argument that the district court erred in concluding that
Baker failed to show that the purported harassment was sufficiently
severe or pervasive or interfered with Baker’s ability to perform her
job.
Title VII prohibits employers from subjecting employees to
harassment, or a hostile work environment. “When the workplace
is permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of the
[plaintiff’s] employment and create an abusive working
environment, Title VII is violated.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (quotations and citations omitted).
To make out a prima facie case of a hostile work
environment based on racial harassment, the plaintiff must
establish that: (1) she belonged to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment was based
on a protected characteristic; (4) the harassment was sufficiently
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“severe or pervasive” to alter the terms and conditions of her
employment and create an abusive working environment; and (5) a
basis exists for holding the employer liable. Furcron v. Mail Ctrs.
Plus, LLC, 843 F.3d 1295, 1304–05 (11th Cir. 2016).
The “severe or pervasive” requirement “contains both an
objective and a subjective component.” Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002). In evaluating the
objective severity of the harassment, a court considers, among
other things, the severity of the conduct and whether it
unreasonably interfered with the employee’s job performance. Id.Isolated incidents that are not extremely serious are not sufficiently
severe or pervasive. See Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998); Jones v. UPS Ground Freight, 683 F.3d 1283, 1303–04 (11th
Cir. 2012) (finding that seven racist acts over the course of one year
was sufficient to preclude summary judgment); but see McCann v.
Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008) (finding that
instances of racially derogatory language over a period of more
than two years were too isolated to be “severe or pervasive”).
Pro se filings are held to a less stringent standard than those
drafted by attorneys and are liberally construed. Stephens v.
DeGiovanni, 852 F.3d 1298, 1319 n.16 (11th Cir. 2017). However,
where a pro se litigant fails to raise a legal claim on appeal, she
abandons that claim, and we will not review it. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). Where an appellant makes only
passing reference to an issue or raises it in a perfunctory manner,
without providing supporting arguments or authority, that claim
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is considered abandoned and need not be addressed on appeal.
Sapuppo, 739 F.3d at 681.
Here, the district court held that Baker had not
demonstrated that the purported hostile actions—“which occurred
over [the course of] more than six months”—were severe or
pervasive, nor did she demonstrate that the actions interfered with
her ability to do her job. Baker, however, makes no argument
addressing the specific holding below and has thus abandoned any
challenge thereof on appeal. Id. And even if she had not
abandoned this challenge, it would fail on the merits. JEA’s
conduct by and through its employees occurred over a period of
six months and consisted largely of supervisors’ and management’s
attempts to urge Baker to fulfill her employment obligations.
Baker has not pointed to any instance of harassment or hostile
action—much less a cumulation of instances to create a hostile
work environment—by any individual at JEA that unreasonably
interfered with Baker’s ability to do her job; much less any action
that was motivated by her race in any way whatsoever. We
therefore affirm the district court’s grant of summary judgment to
JEA on Baker’s hostile work environment claim.
C. Retaliation
Lastly, Baker argues that she has established a prima facie
case of retaliation, faulting the district court for acknowledging
only two of eight instances in which Baker claims she engaged in a
protected activity that was followed by purported adverse action.
Specifically, Baker lists the following instances of protected
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expression: (1) she made a complaint of racial pay disparity in
October 2018; (2) she discussed her job factors and her
compensation complaint with an unspecified individual in
December 2018; (3) she made a complaint to the Director of
Organizational Effectiveness and Payroll regarding her goals and
objectives in December 2018; (4) she made a harassment complaint
in December 2018; (5) she made a formal complaint in December
2018 to the Equal Employment Opportunity Commission; (6) she
made a compensation complaint and a complaint regarding her
MSP in February 2019; (7) she made a hostile work environment
complaint to human resources and management in June 2019; and
(8) she made a workplace retaliation complaint to senior
management in June 2019, hours before her termination.
The district court focused on the purportedly protected
activities in which Baker engaged in December 2018, but Baker
argues that the district court should have also considered the
activities from June 2019. Specifically, Baker argues that her
complaint on June 18, 2019, via email to an allegedly harassing
supervisor constituted protected expression and her demotion ten
days later constituted retaliation.
Title VII prohibits an employer from retaliating against an
employee for, inter alia, opposing “any practice” made unlawful by
Title VII. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of
retaliation, a plaintiff may show that: (1) she engaged in a
statutorily protected activity; (2) she suffered a materially adverse
action; and (3) she established a causal link between the protected
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activity and the adverse action. Howard v. Walgreen Co., 605 F.3d
1239, 1244 (11th Cir. 2010).
To establish statutorily protected conduct, a plaintiff must
show that she had a reasonable, good-faith belief that her employer
was engaged in unlawful employment practices. Id. The plaintiff
must prove that she subjectively held such a belief and that the
belief was objectively reasonable in light of the circumstances. Id.A grievance alleging unfair treatment, absent any indication of
discrimination based on the plaintiff’s protected status, is not
protected under Title VII. Coutu v. Martin Cnty. Bd. of Cnty.
Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995).
As for the materially adverse action prong, warnings that a
plaintiff’s job is in jeopardy do not constitute materially adverse
actions. Howard, 605 F.3d at 1245.
With respect to causation, a plaintiff must show that the
protected activity and the adverse employment action are not
completely unrelated. Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001). “Close temporal proximity between
protected conduct and an adverse employment action is generally
sufficient circumstantial evidence to create a genuine issue of
material fact of a causal connection,” so long as the proximity is
very close. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,
1298 (11th Cir. 2006) (quotation omitted); Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). For instance, a
three-to-four-month “disparity between the statutorily protected
[action] and the adverse employment action is not enough.”
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Thomas, 506 F.3d at 1364. Absent “other evidence tending to show
causation, if there is a substantial delay between the protected
expression and the adverse action, the complaint of retaliation fails
as a matter of law.” Id.In a retaliation case, when an employer contemplates taking
a materially adverse action before an employee engages in
protected activity, “temporal proximity between the protected
activity and the subsequent adverse . . . action does not suffice to
show causation.” Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.
2006). Moreover, superseding, intervening acts may be sufficient
to break a causal chain. See, e.g., Whatley v. Metro. Atlanta Rapid
Transit Auth., 632 F.2d 1325, 1329 (5th Cir. 1980) (noting that “a
culmination of problems growing out of appellant’s manner of
handling his job, his lack of cooperation within his office, his
mismanagement of his staff, his refusal to comply with the terms
of his job description, and his refusal to follow instructions from his
supervisor” were sufficient to break the causal chain between
protected activity and adverse action). 6 Finally, the employee
must ultimately prove that “the desire to retaliate” was the “but-
for” cause of a challenged action. Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 352 (2013).
The district court did not err in granting summary judgment
to JEA on Baker’s retaliation claim because Baker has not
6 All published cases of the former Fifth Circuit decided before the close of
business on September 30, 1981, are precedent in this Circuit. See Bonner v.
City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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established a prima facie case of retaliation. First, assuming that her
complaints in December 2018 are protected activity, they are not
temporally proximate to her termination in June 2019. As for her
complaint in February 2019, the time between February and
termination in June 2019 is likewise not temporally proximate to
her termination. Thomas, 506 F.3d at 1364 (explaining that our
caselaw requires a “very close” temporal relationship between
protected activity and adverse action and that a three-to-four-
month “disparity between the statutorily protected [action] and the
adverse employment action is not enough”).
With respect to her complaint made on June 18, 2019, in
which Baker expressed that she felt “threatened, intimidated, and
harassed” following her encounter with Smith, even assuming that
this email constitutes protected conduct, there is nothing in the
email that ties Baker’s complaints of harassment or intimidation to
her race. Rather, JEA has provided a legitimate, nondiscriminatory
reason for terminating Baker and Baker has done nothing to
demonstrate pretext. Lastly, as to Baker’s complaint made on June
28, 2019 (the same day as her termination), we agree with the
district court that because JEA had already determined that Baker
would be terminated if she chose not to revert, Baker’s termination
could not have been in retaliation for that email. See e.g., Alvarez,
610 F.3d at 1270 (“Title VII’s anti-retaliation provisions do not
allow employees who are already on thin ice to insulate themselves
against termination or discipline by preemptively making a
discrimination complaint.”). We therefore affirm the district
USCA11 Case: 22-11335 Document: 35-1 Date Filed: 08/28/2023 Page: 20 of 20
20 Opinion of the Court 22-11335
court’s grant of summary judgment to JEA on Baker’s retaliation
claim.
III. Conclusion
Because Baker has waived her challenge to the application
of the McDonnell Douglas framework and to the district court’s
conclusions regarding pretext, JEA is entitled to summary
judgment on Baker’s race discrimination claim. Even if Baker did
not abandon her challenge to the district court’s grant of summary
judgment to JEA on her hostile work environment claim—which
we conclude that she did—her hostile work environment claim
would still fail on the merits. Lastly, because Baker cannot
establish a prima facie case of retaliation, JEA is entitled to summary
judgment on that claim as well.
AFFIRMED.