Simone Hamilton v. Sikorsky Aircraft Corporation

Case: 18-11378 Date Filed: 01/25/2019 Page: 1 of 18

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-11378

Non-Argument Calendar

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D.C. Docket No. 9:17-cv-80289-RLR

SIMONE HAMILTON,

Plaintiff-Appellant,

versus

SIKORSKY AIRCRAFT CORPORATION,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 25, 2019)

Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

PER CURIAM:

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Simone Hamilton appeals the district court’s grant of summary judgment to

Sikorsky Aircraft Corporation on her claims of wage discrimination in violation of

the Equal Pay Act, 29 U.S.C. § 206(d); race, gender, and national origin

discrimination in violation of the Florida Civil Rights Act, Fla. Stat. § 760.01(2),

and 42 U.S.C. § 1981; retaliation in violation of the EPA, the FCRA, and § 1981;

and breach of contract based on Executive Order 11246. We affirm.

I.

The district court deemed admitted portions of the statement of facts that

Sikorsky attached to its summary judgment motion because Hamilton did not

comply with a local rule requiring her to challenge each statement she disputed.

See S.D. Fla. L.R. 56.1(b) (“All material facts set forth in the movant’s statement

[of facts] . . . will be deemed admitted unless controverted by the opposing party’s

statement, provided that the Court finds that the movant’s statement is supported

by evidence in the record.”). Hamilton does not contend on appeal that the district

court abused its discretion by doing so. See Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1302 (11th Cir. 2009) (“We give great deference to a district court’s

interpretation of its local rules and review a district court’s application of local

rules for an abuse of discretion.”) (quotation marks omitted). Because “[i]ssues

not raised on appeal are considered abandoned,” AT&T Broadband v. Tech

Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004), we will view the

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statements admitted by the district court as “the functional analog of an unopposed

motion for summary judgment,” Mann, 588 F.3d at 1303 (quotation marks

omitted). 1 Even so, we “must still review the movant’s citations to the record to

determine if there is, indeed, no genuine issue of material fact,” and we still draw

all reasonable inferences and review all evidence in the light most favorable to

Hamilton as the non-moving party on summary judgment. Id. at 1303.

II.

Hamilton is a black Jamaican female who worked as a software engineer

for Sikorsky from November 2007 until her termination on October 7, 2015. In

January 2015 Hamilton transitioned from a pure software engineer position to a

software supplier manager position as part of a new team that would, by late

February, be supervised by Susan Vandermeys. That team was based in Stratford,

Connecticut, but Hamilton worked remotely from Sikorsky’s West Palm Beach

facility, as she had done with her previous assignments.

1

Hamilton responds to Sikorsky’s waiver argument by noting that the district court did

not completely strike her oppositional statement of facts and that therefore no “procedural

default occur[ed].” What she apparently means by this is that “the district court only expressly

rejected several of [her] oppositional statements and otherwise fully considered the oppositional

statement as well as material filed in opposition to the Rule 56 motion.” She does not challenge

the district court’s decision to do that (or its corollary decision to deem admitted certain of

Sikorsky’s factual statements), and such an argument in her reply brief would come too late

anyway. See United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[A]rguments raised

for the first time in a reply brief are not properly before a reviewing court.”) (quotation marks

omitted). In any event, Hamilton is correct that the district court deemed admitted only those

statements by Sikorsky that Hamilton failed to dispute with relevant citations to the record.

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Hamilton was classified as an L7 labor grade for her entire time with

Sikorsky. Jefferson Slayden acted as her on-site administrative supervisor in West

Palm Beach and conducted her annual performance reviews with input from

Hamilton’s off-site team managers. Each year he recommended Hamilton for

merit pay increases, but he never backed her for a promotion to the next labor

grade. On January 30, 2015, soon after transitioning to the new team, Hamilton

sent an e-mail to Slayden , Slayden’s supervisor, and representatives from the

human resources department requesting a promotion. No one responded to the

request.

Hamilton raised the issue again during her annual performance review with

Slayden on March 11, 2015. Slayden told her that the time for promotion

recommendations had already passed before she sent the e-mail and that he did not

approve employees for promotion unless they had achieved “Exceptional

Performance” ratings for at least two years, which Hamilton had not. (Slayden had

rated Hamilton’s overall abilities each year as “Fully Competent,” which was a

step below “Exceptional Performance.”) Although not a company policy, it is

undisputed that Slayden consistently followed his “two EP ratings” rule and had

recommended female and non-white employees for promotion when they met his

requirements and did not recommend white males for promotion when they did

not.

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Two days after her performance review, on March 13, 2015, Hamilton sent

an e-mail to Slayden claiming that she had been subject to retaliation and a lack of

equal employment opportunities and asking how to report her grievances. Slayden

directed her to contact HR. Hamilton e-mailed HR on March 30 and alleged that

she was being paid less than her peers and that her manager from her former team

(not Vandermeys) had suppressed her advancement. She also mentioned that she

faced “subtle discrimination,” though she did not explain what that meant or what

form it took. HR conducted an investigation and determined that Hamilton was

not due a promotion and that she had not faced discrimination.

During this same time period Hamilton was being trained in her new role as

a software supplier manager by David King, the deputy software lead and cost

account manager for Hamilton’s new team. He and the other members of the team

were classified as labor grade L5s — two labor grades above Hamilton — and had

prior experience as software supplier managers. They also had greater job

responsibilities than Hamilton did. Vandermeys initially thought that Hamilton

was also an L5, but in February 2015 learned that she was an L7. Hamilton’s

position ordinarily would have required her to be an L5 as well, so Vandermeys

scheduled a phone call with Hamilton for April 1 to discuss tailoring her job duties

to make them appropriate for an L7.

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In that phone conversation Vandermeys told Hamilton that she had spoken

with Hamilton’s former team manager and with Slayden, and then outlined her

expectations of her team members. The next day Hamilton sent an e-mail to

Vandermeys questioning many of these expectations and stating that she felt

“singled out” by Vandermeys’ direction, that the timing of the phone call was

“suspect,” and that she “fe[lt] retaliated against.” Vandermeys forwarded the

e-mail to HR.

In late June 2015 Hamilton sent an e-mail to Slayden informing him that she

was going to use some of her vacation days. Slayden responded by asking whether

Hamilton’s work would be affected by the time off and if Hamilton had told

Vandermeys. Hamilton replied that Slayden had never before asked her these

questions and accused him of harassment and retaliation for asking them now.

HR set up a meeting with Hamilton and Slayden for June 29, 2015, to try to

work out the conflicts that Hamilton was having with her team and with Slayden.

Before the meeting Hamilton e-mailed a complaint to the general counsel, the

senior vice president of HR, and the ombudsman of United Technologies

Corporation (Sikorsky’s parent company at the time) and told them that the HR

managers at Sikorsky had not investigated her complaint properly. She also

e-mailed Slayden and the Sikorsky HR managers with whom she was about to

meet to reiterate that she thought Slayden was harassing her and retaliating against

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her by asking her to answer questions before he approved her requests for time off.

Hamilton repeated those concerns at the meeting and expressed her opinion that

she was being treated differently than her co-workers.

UTC launched a formal investigation of Hamilton’s claims the next week

and hired Dennis Aiken, a former employee and retired FBI agent, to produce a

report. Aiken submitted his 45-page report on September 9, 2015. He found no

evidence of discrimination or retaliation against Hamilton.

Two days later, on September 11, Vandermeys learned that Hamilton was

causing some confusion by e-mailing internal questions to a supplier. She directed

Hamilton to refrain from e-mailing any of the suppliers directly and to instead send

all correspondence through King or Vandermeys. She then scheduled a phone

conversation with Hamilton for September 16. The day before that conversation

was to happen Hamilton requested a written description of her job responsibilities.

Vandermeys provided this on the 16th and rescheduled the call for the 17th. Then

Hamilton pushed the call back by two weeks, telling Vandermeys that she thought

the phone call pertained to her HR complaint. Vandermeys then learned that

Hamilton had contacted a supplier directly on September 15 — four days after

Vandermeys had told her not to do that. Vandermeys again reached out to

Hamilton to tell her not to have direct contact with any of the suppliers. Hamilton

responded by saying the request was “ludicrous.”

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On September 28, 2015, Lisa Lafferty, the head of Sikorsky’s HR group,

e-mailed Hamilton to set up a meeting to discuss her conflict with Vandermeys.

Hamilton responded to the e-mail on October 5 by saying that she did not want to

discuss her complaint unless Lafferty first provided her with an outline, in writing,

“stating what the content discussion o[f] [her] role going forward will be.”

Lafferty replied that she did not intend to discuss Hamilton’s complaint, that the

investigation of her complaint had already been completed, and that she instead

wanted to discuss “the company’s expectations of [Hamilton’s] work performance,

including [its] expectations of how to handle day to day interactions and requests

from [Hamilton’s] management team.” Hamilton again refused to meet, stating

that she thought the meeting was scheduled because she had filed a complaint.

Lafferty decided to terminate Hamilton’s employment and wrote in her termination

letter to Hamilton that Hamilton had “continued to refuse to follow direction

and/or participate in meetings” and that her behavior had become “insubordinate

and [was] not acceptable.”

Hamilton sued Sikorsky, alleging that Sikorsky paid her substantially less

than similarly situated male employees in violation of the Equal Pay Act, 29

U.S.C. § 206(d); discriminated against her on the basis of gender, race, and

national origin in violation of the Florida Civil Rights Act and 42 U.S.C. § 1981;

retaliated against her for complaining of discrimination in violation of the EPA, the

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FCRA, and 42 U.S.C. § 1981; and breached its contract with the United States

under Executive Order 11246 by discriminating and retaliating against her. The

district court granted summary judgment to Sikorsky on all counts. Hamilton

appeals.

III.

We review de novo a district court’s grant of summary judgment and draw

all reasonable inferences and review all evidence in the light most favorable to the

non-moving party. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,

1318 (11th Cir. 2012). Summary judgment is appropriate if “there is no genuine

issue as to any material fact and the moving party is entitled to a judgment as a

matter of law.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225 (11th Cir.

2005) (quotation marks omitted).

Hamilton challenges the district court’s grant of summary judgment on each

of her four claims. We consider each in turn.

A.

“An employee demonstrates a prima facie case of an Equal Pay Act

violation by showing that the employer paid employees of opposite genders

different wages for equal work for jobs which require equal skill, effort, and

responsibility, and which are performed under similar working conditions.” Steger

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v. Gen. Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir. 2003) (quotation marks

omitted); see 29 U.S.C. § 206(d)(1).

Hamilton contends that Sikorsky violated the EPA by paying her less than

her male colleagues. In support of her claim, and in response to Sikorsky’s motion

for summary judgment on the issue, she points to three pieces of evidence in the

record: her declaration, Aiken’s deposition testimony, and Vandermeys’

deposition testimony. First, Hamilton asserted in her declaration that in 2012 she

“did the same work as Joe Guadiana[,] who was an L6,” and that in 2015 she

“performed the same work as [her] white, male colleagues who were L5s” and

“was still doing L5 work . . . to the end of [her] employment on October 7, 2015.”

Second, Aiken, the investigator hired by UTC, responded to a question in his

deposition about whether Hamilton had job duties commensurate to those of an L5

by saying: “I personally don’t know her job responsibilities were commensurate.

But I was told that her job responsibilities were more similar to that of an L-5, and

that’s why they wanted to give her job responsibilities more similar to an L-7,

which she was.” And third, Vandermeys said in her deposition that she did not

know that Hamilton was an L7 instead of an L5 when Hamilton first joined the

team. Hamilton argues that, when viewed in the light most favorable to her, these

three pieces of evidence are enough to raise a genuine dispute about whether she

performed the same work as her higher-paid male colleagues.

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We disagree. Sikorsky has pointed to specific evidence in the record that

shows that it is entitled to summary judgment on Hamilton’s EPA claim. In

response to Hamilton’s assertion that she made less than Guadiana did in 2012,

Sikorsky provided the actual 2012 salaries of both Guadiana and Hamilton.

Hamilton’s salary was higher. Hamilton did not contest the numbers submitted by

Sikorsky or offer anything else to support her conclusory statement that she was

paid less than Guadiana. Likewise, Sikorsky offered evidence showing that

Hamilton’s co-workers on her new team had job responsibilities that she did not.

For instance, in addition to training Hamilton, King acted as the software supplier

manager for one of Sikorsky’s major suppliers and as the primary software point of

contact for the Training Integrated Product Team at Sikorsky. Stephen Sholtis,

another team member, served as the software supplier manager and cost account

manager for the company’s largest supplier. Hamilton provided no evidence that

she did similar tasks, nor did she name any person on her team whose role was

more similar to her own. And as for Vandermeys’ statement that she initially

thought that Hamilton was an L5, she later clarified in a sworn declaration that

Hamilton was “not performing L5 or even L7 job responsibilities as a Software

Supplier Manager.” These statements do not conflict with each other; the latter

simply explains the former.

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Hamilton argues that to accept the facts submitted by Sikorsky is to

improperly weigh the evidence and draw inferences in favor of the movant instead

of the non-movant on summary judgment. But that’s not so. There is a difference

between saying what the facts of the case are and viewing those facts in the light

most favorable to Hamilton. What Hamilton provided in her declaration are not

factual statements but “conclusory allegations” of the sort we have repeatedly held

“have no probative value.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th

Cir. 2000); see United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (en banc)

(“An affidavit cannot be conclusory, but nothing in Rule 56 . . . prohibits an

affidavit from being self-serving.”) (citation omitted).

Hamilton takes exception to characterizing her statement as conclusory, but

stating with nothing more that she “performed the same work as [her] white, male

colleagues who were L5s” is, by definition, conclusory: It “[e]xpress[es] a factual

inference without stating the underlying facts on which the inference is based.”

Conclusory, Black’s Law Dictionary (10th ed. 2014). The underlying facts that

Hamilton did not provide — but Sikorsky did — are (1) who the white, male

colleagues were, (2) what work they performed, and (3) what work Hamilton

performed. And in the face of those underlying facts, which are all unfavorable to

her, Hamilton’s general statement has no probative value. See Evans v. Books-A-

Million, 762 F.3d 1288, 1296 (11th Cir. 2014) (upholding district court’s decision

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to strike portions of plaintiff’s summary judgment affidavit as conclusory because

plaintiff’s statement that her male colleagues were making more money than she

“did not provide specific, supporting facts regarding, for example, the amount of

other employees’ salaries compared to hers”).

Hamilton did not provide any rebuttal evidence that created a genuine

dispute of material fact on these issues.2 See Josendis, 662 F.3d at 1315 (“[T]he

non-moving party cannot satisfy its burden if the rebuttal evidence ‘is merely

colorable, or is not significantly probative’ of a disputed fact.”) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511 (1986)). The

district court therefore did not err in granting summary judgment to Sikorsky when

the undisputed evidence showed that it was not paying Hamilton less than her male

coworkers “for equal work on jobs the performance of which require[d] equal skill,

effort, and responsibility.” 29 U.S.C. § 206(d).

B.

Hamilton next argues that the district court erred by improperly weighing

evidence on her claims of gender, race, and national origin discrimination in

2

This is true even if Aiken’s deposition testimony that he “was told” about Hamilton’s

job responsibilities is considered. In any event, we agree with the district court that it should not

be because it was not based on personal knowledge. Cf. Josendis v. Wall to Wall Residence

Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (“All affidavits must be based on personal

knowledge and must set forth facts that would be admissible under the Federal Rules of

Evidence.”).

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violation of the Florida Civil Rights Act and 42 U.S.C. § 1981. Claims of

discrimination under the FCRA and § 1981 are analyzed under the same

burden-shifting framework applied to claims under Title VII of the Civil Rights

Act of 1964. See Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 n.6 (11th

Cir. 2015). A plaintiff typically establishes a prima facie case of discrimination by

“showing that she was a qualified member of a protected class and was subjected

to an adverse employment action in contrast to similarly situated employees

outside the protected class.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1264 (11th Cir. 2010). The district court ruled that Hamilton did not meet

this threshold showing because Hamilton could not show that she performed the

same work as her higher-paid colleagues or that her failure to be promoted was in

contrast to similarly situated employees who were either not female, not black, or

not Jamaican.

Hamilton makes one argument on appeal, so that is the only argument we

need consider. See AT&T Broadband, 381 F.3d at 1320 n.14 (“Issues not raised

on appeal are considered abandoned.”). Her argument is that the district court

improperly weighed evidence by discounting the statement of a Sikorsky HR

manager that, according to Hamilton, “inferentially show[ed] that there [was]

evidence of discrimination.” The complete statement is this: “Ms. Hamilton has

been an L7 for ten years; this is an excessive duration to be at this level unless

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performance is not up to par. Ms. Hamilton’s performance has consistently been at

fully competent level since 2010 so it does not appear that her performance is sub-

par.”

We cannot agree with Hamilton that this statement, standing alone (which is

how Hamilton presents it), is enough to establish a prima facie case of

discrimination on the basis of her race, gender, or national origin. Nor do we agree

that the district court improperly weighed evidence simply because it rejected

Hamilton’s assertion that the statement showed evidence of discrimination. In fact,

the district court considered the statement in light of all the evidence before it.

That evidence included testimony by the same HR manager that she did not find

evidence of discrimination, and included evidence presented by Sikorsky that

showed that fourteen white males who entered Hamilton’s job code after she did

had also not been promoted to the next labor grade. After considering all of the

evidence, the court properly found that Hamilton had not made a prima facie

showing. And to the extent Hamilton’s claim of discrimination is based on her

being paid less than her male co-workers for the same work, that claim must fail

for all the reasons discussed above. The district court did not err by concluding

likewise.

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C.

We next turn to Hamilton’s retaliation claim. She contends that the district

court again improperly weighed evidence and drew inferences against her by

crediting Sikorsky’s explanation of events rather than hers. To establish a prima

facie case of retaliation, a plaintiff must show that (1) she engaged in statutorily

protected expression, (2) she suffered “a materially adverse action,” and (3) “there

was a causal connection between the protected activity and the adverse action.”

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012)

(quotation marks omitted).

The district court ruled that Hamilton waived any argument that the HR

complaints she submitted on January 31, March 30, and June 29 of 2015

constituted the statutorily protected expression for which she was fired. Hamilton

does not challenge that ruling on appeal. The district court then turned to

Hamilton’s assertion that the e-mails she sent to Lafferty on October 5 and 6 (when

Lafferty was trying to meet with her but Hamilton refused to do so) constituted

statutorily protected expression. The district court concluded that these e-mails did

not because they stated only Hamilton’s belief that Lafferty wished to discuss her

complaint and otherwise contained only vague assertions of discrimination or

unfair treatment. Hamilton does not challenge that ruling on appeal, either.

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Hamilton instead focuses her argument solely on the district court’s

alternative ruling that Sikorsky articulated legitimate, non-retaliatory reasons for

firing her and that she did not present evidence showing that those reasons were

pretext for retaliation. But “[t]o obtain reversal of a district court judgment that is

based on multiple, independent grounds, an appellant must convince us that every

stated ground for the judgment against h[er] is incorrect. When an appellant fails

to challenge properly on appeal one of the grounds on which the district court

based its judgment, [s]he is deemed to have abandoned any challenge of that

ground, and it follows that the judgment is due to be affirmed.” Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). That is the

situation here. Hamilton has not argued that the district court erred in finding that

Hamilton’s e-mails were not statutorily protected expression to begin with. That

finding was enough to grant summary judgment to Sikorsky on her retaliation

claim. 3

D.

That leaves Hamilton’s argument that Sikorsky breached its contract with

the United States under Executive Order 11246 by discriminating and retaliating

3

Hamilton states in her brief that her final e-mail to Lafferty “clearly constitute[d]

protected activity,” but this passing reference in a section arguing against one of the district

court’s alternative rulings is not enough to preserve the argument. See Sapuppo, 739 F.3d at 681

(explaining that a claim is abandoned when a party “makes only passing references to it or raises

it in a perfunctory manner without supporting arguments and authority”).

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against her. Executive Order 11246 requires governmental contractors not to

discriminate against any employee because of race, creed, color, or national origin,

and to take affirmative action to ensure that employees are treated without regard

to race, creed, color, or national origin. Exec. Order No. 11246.

“[C]ourts have repeatedly held that executive order 11246 does not create a

private cause of action for employees to enforce the equal opportunity clause in

their employers’ government contracts.” Eatmon v. Bristol Steel & Iron Works,

Inc., 769 F.2d 1503, 1515 (11th Cir. 1985) (collecting cases). We decline

Hamilton’s invitation to recognize such an action now.

AFFIRMED.

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