The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 12, 2006
No. 05-16439 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80652-CV-KLR
LAZHAR ABBES,
Plaintiff-Appellant,
versus
EMBRAER SERVICES, INC.,
d.b.a. Embraer Services Inc.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 12, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Lazhar Abbes, a Canadian and Tunisian citizen, proceeding pro se, appeals
the district court’s grant of summary judgment to Embraer Engineering Services,
Inc., (“EESI”), in his suit alleging national origin discrimination under Title VII.1
On appeal, Abbes argues that the district court erred in granting summary
judgment for EESI because EESI treated other Brazilian employees more favorably
and its given reasons for his termination were a pretext.
We review a district court’s grant of summary judgment de novo, applying
the same standards utilized by the district court. S.E.C. v. Adler, 137 F.3d 1325,
1332 (11th Cir. 1998). The moving party is entitled to summary judgment if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). If the non-moving party bears the ultimate burden of proof
regarding the claim at issue in the motion, that party, in response to the motion,
must go beyond the pleadings and establish, through competent evidence, that
there truly is a genuine, material issue to be tried. Celotex Corp. v. Catrett, 477
U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Additionally, the
non-moving party must present enough evidence to demonstrate that it can meet
the substantive evidentiary standards that apply to the case, that is, that a jury could
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Abbes mistakenly named Embraer Services, Inc., as the defendant. The final
judgment notes that the defendant’s correct name is Embraer Engineering Services, Inc.
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reasonably return a verdict in his favor. See Anderson v. Liberty Lobby, 477 U.S.
242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). We view the evidence
and all factual inferences therefrom in the light most favorable to the party
opposing the motion, and all reasonable doubts about the facts are resolved in
favor of the nonmovant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th
Cir. 1999). “A mere ‘scintilla’ of evidence supporting the opposing party's
position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990).
A. National Origin Discrimination
Title VII makes it an unlawful employment practice for an employer to fail
or refuse to hire or to discharge any individual, or otherwise discriminate 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. See Bass v. Board of County Com'rs, Orange County, Fla., 256 F.3d 1095,
1103 (11th Cir. 2001); see also 42 U.S.C. § 2000e-2(a).
“In order to prove discriminatory treatment in violation of Title VII, a
plaintiff must first establish a prima facie case of discrimination.” Coutu v. Martin
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County Bd. of County Comm’rs, 47 F.3d 1068, 1073 (11th Cir. 1995). We have
stressed that courts should avoid a strict formulation of the elements of a prima
facie case. See Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989).
Absent direct evidence of discrimination, a plaintiff in a termination case can
establish a prima facie case by showing that: (1) he is a member of a protected
class; (2) he was subject to an adverse employment action; (3) he was qualified for
the position held; (4) and he was replaced or treated less favorably than someone
similarly situated outside of his protected class. Knight v. Baptist Hosp. of Miami,
Inc., 330 F.3d 1313, 1316 (11th Cir. 2003).
“To show that employees are similarly situated, the plaintiff must show that
the employees are similarly situated in all relevant respects . . . it is necessary to
consider whether the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways.” Knight, 330 F.3d at 1316. An
employee who committed multiple infractions is not similarly situated to an
employee who committed one infraction. Silvera v. Orange County School Bd.,
244 F.3d 1253, 1259 (11th Cir.2001).
“A prima facie case of discrimination raises the inference that
discriminatory intent motivated the adverse employment action.” Coutu, 47 F.3d
at 1073. “The employer may rebut this inference by ‘clearly articulating in a
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reasonably specific manner a legitimate non-discriminatory reason’ for the adverse
action.” Id. quoting Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1499 (11th
Cir. 1985). “The heart of the pretext inquiry is not whether the employee agrees
with the reasons that the employer gives for the discharge, but whether the
employer really was motivated by those reasons.” Standard v. A.B.E.L. Servs,,
Inc., 161 F.3d 1318, 1333 (11th Cir. 1998). “Once the employer satisfies this
burden of production, the plaintiff then has the burden of persuading the court that
the proffered reason is a pretext for the true discriminatory reason.” Coutu, 47
F.3d at 1073. “If the plaintiff does not proffer sufficient evidence to create a
genuine issue of material fact regarding whether each of the defendant employer’s
articulated reasons is pretextual, the employer is entitled to summary judgment on
the plaintiff’s claim.” Chapman v. AI Transp., 229 F.3d 1012, 1024, 1025 (11th
Cir. 2000) (en banc).
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error.
The district court did not err in granting summary judgment for EESI
because Abbes did not present a prima facie case of national origin discrimination.
EESI concedes that Abbes, a Tunisian, is a member of a protected class and that
he was terminated. Further, Abbes was qualified for an engineering position with
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EESI.
However, Abbes cannot demonstrate that he was replaced upon termination
or that EESI treated him less favorably than someone outside of his protected class.
Abbes does not allege that EESI replaced him upon termination. Abbes does argue
that EESI treated a group of Brazilians more favorably and rewarded them with
promotions, despite little experience. This evidence does not show, however, that
EESI disciplined employees outside of Abbes’s protected class, with similar
performance or behavioral issues, differently than it disciplined Abbes.
Abbes also claims that EESI transferred other engineers to the interiors
group, but did not fire them despite their incompetence. However, he does not
present any evidence of these engineers’ incompetence, nor is there evidence that
EESI demoted, but did not fire, Brazilians. Because Abbes presents no evidence
that EESI treated similarly situated engineers outside of his protected class more
favorably than him, Abbes cannot prove a prima facie case of national origin
discrimination.
Assuming that Abbes could establish a prima facie case of national origin
discrimination, EESI is still entitled to summary judgment because Abbes cannot
rebut EESI’s legitimate, non-discriminatory purpose for terminating him. EESI
asserts that it terminated Abbes because of his constant disagreements with his
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supervisors. Abbes does not adduce any facts to prove that this reason was a
pretext for EESI’s discrimination against him, and he admitted that his supervisors
believed in the validity of their criticisms of him. Despite Abbes’s assertions that
his “performance was perfect,” he presented no evidence to create a material
dispute of fact that EESI’s reasons for terminating him were pretextual.
Accordingly, the district court did not err in granting EESI’s motion for summary
judgment as to Abbes’s claims of national origin discrimination.
B. National Origin Harassment
Abbes also argues on appeal that EESI harassed him by creating a “harsh
work environment”, transferring him to the interiors group, restricting his access to
important computer programs, pressuring him to complete work, and maintaining a
cold work area.
Title VII of the Civil Rights Act of 1964 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). 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
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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). The employee has the burden of proving a hostile
work environment. Edwards v. Wallace Community College, 49 F.3d 1517, 1521
(11th Cir. 1995). To establish a hostile work environment, a plaintiff must
demonstrate five things, that: (1) he belongs to a protected group; (2) he has been
subjected to unwelcome harassment; (3) the harassment was based on the protected
characteristic; (4) the harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and thus create a discriminatorily abusive
work environment; and (5) the employer is responsible for that environment under
a theory of either direct or vicarious liability. Miller, 277 F.3d at 1275.
Establishing that the harassing conduct was sufficiently severe or pervasive
to alter the terms and conditions of employment has subjective and objective
components. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en
banc). The employee must personally perceive the harassment as severe or
pervasive. Id. Additionally, the environment must be one that a reasonable person
in the employee’s position would find hostile or abusive. Id.
Four factors are important in analyzing whether harassment objectively
altered an employee’s terms or conditions of employment: (1) the frequency of the
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conduct; (2) the severity of the conduct; (3) whether the conduct was physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interfered with the employee’s job performance. Id. We
must consider the alleged conduct in context and cumulatively, looking at the
totality of the circumstances. Id. at 1242. However, mere utterance of an epithet
which engenders offensive feelings in a employee does not sufficiently affect the
conditions of employment to implicate Title VII. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 371, 126 L.Ed.2d 195 (1993).
After reviewing the record and the parties’ briefs, we find no reversible
error.
The district court did not err in granting EESI’s motion for summary
judgment because Abbes cannot prove that any alleged harassment was so severe
that it altered the terms and conditions of his employment. Even if the acts Abbes
complains of qualified as unwelcome harassment, Abbes presents no evidence that
EESI’s management took these actions because of his Tunisian background.
Abbes also presented an affidavit which detailed discriminatory statements
made by one employee towards another of Lebanese origin. However, there is no
evidence that Abbes was privy to this statement so he could not subjectively
perceive these statements as hostile. Further, such isolated epithets do not
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sufficiently affect the conditions of employment to implicate Title VII. Finally,
Abbes cannot prove that the alleged incidents altered the terms and conditions of
his employment. Therefore, Abbes cannot prove that EESI and its employee’s
conduct unreasonably interfered with his job performance. As a mere scintilla of
evidence is not enough to defeat summary judgment, Abbes cannot show a
material dispute of fact in order to defeat summary judgment.
Accordingly, we affirm the district court’s grant of summary judgment in
favor of EESI.
AFFIRMED.
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