Rebecca M. Duncan v. Madison County , 272 F. App'x 859 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 9, 2008
No. 07-14847 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00093-CV-CLD-3
REBECCA M. DUNCAN,
Plaintiff-Appellant,
versus
MADISON COUNTY,
WESLEY J. NASH,
Individually and as Chairman of the
Madison County Board of Commissioners,
MORRIS FORTSON, Individually and as
County Clerk of Madison County,
BRUCE SCOGIN, Individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 9, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Rebecca Duncan appeals the summary judgment in favor of Madison
County, Georgia, and against her complaints of wage discrimination under the
Equal Pay Act, 29 U.S.C. § 206(d), and disparate treatment, sexual harassment,
and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
2(a), 2000e-3(a). The district court concluded that Madison County provided a
legitimate reason for compensating Duncan’s male predecessor at a higher pay and
Duncan failed to establish a prima facie case of either sexual harassment or
retaliation. We affirm.
I. BACKGROUND
Duncan was hired first as an appraiser in the Madison County Office of Tax
Assessors, and she was later promoted to chief appraiser by the Madison County
Board of Tax Assessors. About a year after Duncan’s promotion, the Madison
County Board of Commissioners increased the pay scale for the chief appraiser
from level 15 to level 16, but Duncan did not receive a pay increase.
The Chairman of the Board of Commissioners, Wesley Nash, later received
information that the Office of Tax Assessors had committed “sales chasing” by
recording the appraised value of real property when it was sold without reassessing
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the value of the surrounding properties. Nash met with Duncan, Madison County
Clerk Morris Fortson, and the Board of Assessors. All agreed that they would
investigate the practice and ask the Georgia Department of Revenue to review the
appraisal process. Nash, who was facing reelection, became concerned with
Duncan’s level of experience. Nash recommended that the County hire a
supervisor for Duncan, and Nash increased his scrutiny of the assessor’s office.
Duncan determined that Mechell Salter was responsible for the “sales
chasing.” Duncan asked Nash and Fortson to attend a meeting about Salter, but
Fortson declined and responded that only Nash could terminate an employee of
Madison County. Duncan met with the Board of Assessors and testified that Salter
had changed the year on a sale of real estate. The Board of Assessors voted to
terminate Salter. Nash immediately reassigned Salter to a position in Nash’s
office.
Nash asked the Georgia Department of Revenue to investigate the Office of
Tax Assessors and the Board of Assessors. Duncan was upset by the investigation
and wrote a letter to the personnel director in which she asked for “protect[ion]”
from harassment caused by the continual “meddling” by Nash and Fortson.
Duncan also complained about Salter’s reassignment. The personnel director did
not investigate Duncan’s complaint, and Nash continued to scrutinize Duncan’s
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office. Fortson also published an article in a local newspaper in which he criticized
Duncan and the Board of Assessors.
On February 3, 2005, the Board of Commissioners fired Duncan. The Board
listed six reasons for Duncan’s termination: insubordination, professional
incompetence and negligence; dissemination of false information about fellow
employees; dismissal of Salter in violation of County rules and ordinances;
offensive conduct and offensive language with the public; and conduct that
reflected poorly on Madison County. Duncan responded to her firing with a
lawsuit.
Duncan filed a complaint against Madison County, Nash, Fortson, and
Commissioner Bruce Scogin. Duncan complained that Madison County
discriminated against her on the basis of sex, in violation of Title VII, and engaged
in wage discrimination, in violation of the Equal Pay Act. In support of her
complaint, Duncan alleged that she had been paid less than her male predecessor,
Charles Anglin. Duncan also complained that the County subjected her to a hostile
work environment and retaliated against her for “her assertion of her rights under
law.” In the remainder of her complaint, Duncan alleged that Nash violated her
rights under the First and Fourteenth Amendments when he threatened to terminate
her if she refused to support his reelection campaign; Nash and Fortson caused her
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emotional distress; and Scogin defamed her.
The defendants moved for summary judgment. The defendants presented
evidence that Anglin served both as chief tax appraiser and as a “GIS specialist”
and had a “more specialized education, had greater duties, greater responsibilities,
and indeed was entitled to greater pay.” The district court granted summary
judgment in favor of all the defendants.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo and review the evidence in
the light most favorable to the nonmoving party. Brooks v. County Comm’n of
Jefferson County, Ala., 446 F.3d 1160, 1161–62 (11th Cir. 2006). Summary
judgment is appropriate when there exists no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
III. DISCUSSION
Duncan challenges the summary judgment in favor of Madison County on
three grounds. First, Duncan argues that she established that Madison County
engaged in wage discrimination and disparate treatment because she performed the
same duties as her male predecessor but received lower compensation. Second,
Duncan argues that she was sexually harassed because Madison County failed to
address her complaints about a hostile work environment. Third, Duncan argues
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that Madison County retaliated against her after she voiced concerns about the
security of records in the office of the tax assessor.
A. Madison County Was Entitled to Summary Judgment Against Duncan’s
Complaint of Pay Disparity.
Duncan’s complaint of disparate pay is based on two federal statutes. The
Equal Pay Act prohibits an employer from discriminating against employees on the
basis of sex “for equal work on jobs the performance of which require ‘equal skill,
effort, and responsibility, and which are performed under similar working
conditions[,]’” but an employer may base a wage difference on any factor “other
than sex[.]” 29 U.S.C. § 206(d)(1); Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078
(11th Cir. 2003). Title VII similarly prohibits an employer from discharging or
discriminating against an employee “with respect to [her] compensation, terms,
conditions or privileges of employment, because of [her] . . . sex.” 42 U.S.C. §
2000e-2(a)(1).
The district court assumed, without deciding, that Duncan established a
prima facie case of pay discrimination, under both statutes, and the district court
concluded that Madison County provided a legitimate reason for the disparity in
compensation. Madison County established that Duncan’s predecessor, Anglin,
performed duties as both the chief appraiser and a “GIS specialist” and received a
pay classification of 16.5 to compensate him for his dual role. Duncan admitted
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that she should not have received the same pay as Anglin “because [she] did not
have” the same “knowledge or . . . background.”
Duncan failed to present any evidence that the reason proffered by Madison
County was pretextual. Duncan instead admitted that Anglin performed additional
duties and was entitled to increased compensation for that work. The district court
correctly entered summary judgment against Duncan’s complaint of pay disparity.
B. Madison County Was Entitled To Summary Judgment Against Duncan’s
Complaint of a Hostile Work Environment.
Duncan argues that she presented evidence that she suffered a hostile work
environment. We disagree. To establish a prima facie case of a hostile work
environment, Duncan had to prove that she suffered harassment based on her sex
that was “sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment” and was
remediable by her employer. Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238,
1244 (11th Cir. 2004) (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th
Cir. 1999) (en banc)); see 42 U.S.C. § 2000e-2(a)(1).
The district court assumed that Duncan could establish that she was in a
protected class and subject to unwelcome harassment, but concluded that the
“harassment” Duncan described in a letter to the county personnel director did not
affect her work environment and was not attributable to her sex. In the letter,
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Duncan complained that Nash and Fortson “meddl[ed]” in her office because they
reinstated Mechell Salter. Duncan also alleged that she was “harassed” when the
officials gave Salter access to Duncan’s tax appraisal records. We agree with the
district court.
A “reasonable person” would not find the efforts by Nash and Fortson to
inspect Duncan’s record-keeping and oversee her performance as chief tax assessor
to be “hostile or abusive.” Hulsey, 367 F.3d at 1244. Duncan also did not state
that she was harassed because she was female. Because Duncan offered no
evidence that she suffered gender-based discrimination, the district court correctly
entered summary judgment against Duncan’s complaint of a hostile work
environment.
C. Madison County Was Entitled to Summary Judgment Against Duncan’s
Complaint of Retaliation.
Duncan argues that Madison County retaliated against her because she spoke
“about concerns as to the safety of records contained within her office,” but we
disagree. To establish a prima facie case of retaliation under Title VII, Duncan had
to prove that she was engaged in a statutorily protected activity, she suffered a
materially adverse action, and there is a causal relation between the two events.
Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2410–16 (2006). An
employee engages in a statutorily protected expression if she “oppose[s]” a
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practice forbidden under Title VII, such as gender discrimination, or has “made a
charge, testified, assisted, or participated in” a Title VII “investigation,
proceedings, or hearing.” 42 U.S.C. § 2000e-3(a).
Duncan draws no connection between her concerns about the security of
appraisal records in her office and an unlawful employment practice by Madison
County. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)
(“To establish that a plaintiff engaged in statutorily protected expression, . . . a
plaintiff must show that she had a good faith, reasonable belief that the employer
was engaged in unlawful employment practices.”). Duncan fails to provide any
evidence that she engaged in statutorily protected activity. We agree with the
district court that Duncan did not establish a prima facie case of retaliation.
Duncan argued in her reply brief that Madison County retaliated against her
because she complained about her low wages and hostile work environment.
Duncan referenced those complaints in her initial brief, but her only argument was
that the County retaliated in response to her remarks about the security of records
in her office. We do not consider arguments raised by the appellant for the first
time in a reply brief. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972
(11th Cir. 2008) (“presenting the argument” in a reply brief does not “resurrect”
the issue).
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VI. CONCLUSION
The summary judgment in favor of Madison County is AFFIRMED.
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