Flora R.S. Selby v. Tyco Healthcare Group, L.P.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

DEC 9, 2008

No. 07-15810 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 05-00719-CV-ORL-GRJ

FLORA R.S. SELBY,

Plaintiff-Appellant,

versus

TYCO HEALTHCARE GROUP, L.P.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 9, 2008)

Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Flora Selby, an Asian-Pacific Islander proceeding pro se, appeals the district

court’s disposition of her racial discrimination suit against her former employer,

Tyco Healthcare Group, L.P. (Tyco). Selby brought claims for wrongful

termination, under Florida’s common law, and discrimination, harassment, and

retaliation, all under Title VII, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and

the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq.

Selby worked as a machine operator for Tyco, a manufacturer and

distributor of medical supplies, from 1988 until she was fired in April 2004.

Before the district court, Selby alleged she was harassed numerous times because

of her race, and her termination constituted racial discrimination. She also alleged

she was fired in retaliation for filing a complaint with the Equal Employment

Opportunity Commission and the Florida Commission on Human Relations. In

response, Tyco insisted Selby was fired because she was insubordinate and left

work early without a supervisor’s permission.

On appeal, Selby argues the district court abused its discretion and did not

afford her sufficient time to conduct discovery. She also contends the district court

erred by granting summary judgment to Tyco on her wrongful termination claim

because she was a permanent employee with an employment contract with Tyco,

and thus not subject to termination at will. Selby also argues summary judgment

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was improper on her discrimination and harassment claims. Finally, she contends

the court erred by entering judgment for Tyco on her retaliation claims, because

her history with Tyco showed it did not fire her for insubordination.

Tyco argues we should affirm the district court’s decisions because Selby

did not include summary judgment documents and evidence, trial transcripts, or the

district court’s post-trial order in her record excerpts. We agree Fed. R. App. P.

10(b)(2) requires the appellant to “include in the record a transcript of all evidence

relevant to [the challenged] finding or conclusion.” Here, however, Selby’s failure

to include these documents does not preclude us from conducting a meaningful

review, because those documents are available to us on the district court’s website

and in the printed record on appeal. Accordingly, we reject Tyco’s argument and

address Selby’s appeal on the merits.

I.

The district court’s denial of additional discovery is reviewed for abuse of

discretion, “and a party must be able to show substantial harm to its case from the

denial of its requests for additional discovery.” Leigh v. Warner Bros, Inc., 212

F.3d 1210, 1219 (11th Cir. 2000). It is not per se improper to grant summary

judgment without providing the opponent an opportunity to conduct discovery.

Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 844 (11th Cir. 1989).

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“District courts are accorded wide discretion in ruling upon discovery motions, and

appellate review is accordingly deferential.” Harbert Int’l, Inc. v. James, 157 F.3d

1271, 1280 (11th Cir. 1998) (citation omitted).

Rule 56(f) of the Federal Rules of Civil Procedure states the party opposing

summary judgment may move the court to permit discovery necessary to oppose

the motion. Fed. R. Civ. P. 56(f). Because whether to grant or deny a Rule 56(f)

motion for discovery requires the court to balance the movant’s demonstrated need

for discovery against the burden such discovery will place on the opposing party, a

Rule 56(f) motion must be supported by an affidavit which sets forth with

particularity the facts the moving party expects to discover and how those facts

would create a genuine issue of material fact. Harbert Int’l, Inc., 157 F.3d at 1280.

There is no indication in the record Selby ever moved for an extension of

time to conduct discovery, under Rule 56(f) or under any other Rule. Further, on

appeal, she does not identify any particular order as constituting an abuse of

discretion. Given the district court’s wide discretion in managing discovery, and

considering Selby never requested additional time, the court did not abuse its

discretion by taking Tyco’s motion for summary judgment under advisement on

March 14, 2007.

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II.

“We review de novo a district court’s grant of summary judgment, applying

the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d

1012, 1023 (11th Cir. 2000) (en banc). The moving party is entitled to summary

judgment if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, show there is no genuine issue as to any

material fact and 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, there

truly is a genuine, material issue to be tried. Celotex Corp. v. Catrett, 106 S. Ct.

2548, 2553 (1986).

Selby’s allegation Tyco breached her employment contract by wrongfully

terminating her is governed by Florida’s common law. In Florida, “[a]n employee

may be terminated at will, without a showing of cause, where the employment

contract between the parties is indefinite as to the period of employment.” Linafelt

v. Bev, Inc., 662 So. 2d 986, 989 (Fla. 1st DCA 1995). Even where an employee

claims to have been “hired as a ‘permanent’ employee, in the absence of an

agreement for a particular period of employment[,] his term of employment must

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be regarded as indefinite and terminable at will.” Muller v. Stromberg Carlson

Corp., 427 So. 2d 266, 270 (Fla. 2nd DCA 1983).

The district court did not err in finding Selby was an at-will employee and

therefore not eligible to recover under Florida law for wrongful termination. Selby

presented no evidence she was hired for a definite duration of time. Although she

argues she was a “permanent” employee because of the benefits she received, she

admitted she signed an agreement expressly acknowledging Tyco could terminate

her employment at any time, for any reason. Selby was an at-will employee and is

not able to recover for wrongful termination under Florida’s common law. See

Muller, 427 So. 2d at 270.

III.

Selby’s claim she was subject to employment discrimination based on her

race or national origin is governed by Title VII, 42 U.S.C. § 2000e et seq.;

42 U.S.C. § 1981; and the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq.

(FCRA). Title VII prohibits employers from engaging in practices that

discriminate on the basis of race or national origin. See 42 U.S.C. § 2000e-2(a).

Section 1981 of Title 42 protects an individual's right to be free from racial

discrimination in the “making, performance, modification, enforcement, and

termination” of contracts, and has the same requirements of proof and uses the

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same analytical framework as Title VII. Standard v. A.B.E.L. Servs., Inc., 161 F.3d

1318, 1330 (11th Cir. 1998). Likewise, claims brought under the FCRA are

analyzed under the same framework as those brought under Title VII. Harper v.

Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

Absent direct evidence of an employer’s discriminatory motive, a plaintiff

may establish her case through circumstantial evidence, using the burden-shifting

framework established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 93 S. Ct. 1817 (1973). EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,

1272 (11th Cir. 2002). Under this framework, the plaintiff may establish a prima

facie case of race discrimination by showing: “(1) [s]he belongs to a racial

minority; (2) [s]he was subjected to adverse job action; (3) [her] employer treated

similarly situated employees outside [her] classification more favorably; and

(4) [s]he was qualified to do the job.” Holifield v. Reno, 115 F.3d 1555, 1562

(11th Cir.1997). If the plaintiff establishes a prima facie case, the defendant can

rebut the presumption of discriminatory intent by producing a legitimate

nondiscriminatory reason for the adverse employment action. Id. at 1564. The

burden then shifts back to the plaintiff to establish the reason is pretext for

discrimination. Id. at 1565. The plaintiff bears the ultimate burden of showing

intentional discrimination. Id.

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The employee has the burden of proving actionable harassment, or a hostile

work environment. Edwards v. Wallace Comty. Coll., 49 F.3d 1517, 1521 (11th

Cir. 1995). To establish a hostile work environment, Selby must demonstrate:

(1) she belongs to a protected group; (2) she has been subjected to unwelcome

harassment; (3) the harassment was based on her protected characteristic; (4) the

harassment was sufficiently severe or pervasive to alter the terms and conditions of

her employment and thus create a discriminatorily abusive work environment; and

(5) Tyco was responsible for the hostile environment under a theory of either direct

or vicarious liability. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275

(11th Cir. 2002).

“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only

by looking at all the circumstances. These may include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee's work performance.” Harris v. Forklift Sys., Inc., 114 S. Ct.

367, 371 (1993). “‘[S]imple teasing,’ offhand comments, and isolated incidents

(unless extremely serious) will not amount to discriminatory changes in the ‘terms

and conditions of employment.’” Faragher v. City of Boca Raton, 118 S. Ct.

2275, 2283 (1998) (citation omitted).

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With regard to Selby’s discrimination claim, she has not identified any

similarly situated employee - that is, one with the same attendance and discipline

problems - who was treated differently than her. Accordingly, she did not establish

a prima facie case of discrimination under the McDonnell-Douglas framework.

With regard to Selby’s harassment claim, she identified only one incident of

hostility based on her race: a coworker yelled “You load! You load! You load!”

with a fake accent mimicking Selby’s Asian-Pacific dialect. This single incident of

teasing was not so severe or pervasive that it altered the terms and conditions of

Selby’s employment, so she did not establish a prima facie case of harassment.

See Faragher, 118 S. Ct. at 2283. Accordingly, the district court did not err by

granting summary judgment to Tyco on these claims.

IV.

On appeal from a district court order after a bench trial, “we review the

court’s conclusions of law de novo and its findings of fact for clear error.” HGI

Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005).

“[W]hen there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Burrell v. Bd. of Trs. of Ga. Military

Coll., 125 F.3d 1390, 1394 (11th Cir. 1997).

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It is unlawful “for an employer to discriminate against any of his

employees . . . because he has opposed any practice made an unlawful employment

practice by [Title VII], or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under [Title

VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under

Title VII or § 1981, an employee must show “[(1)] he engaged in statutorily

protected activity, [(2)] he suffered a materially adverse action, and [(3)] there was

some causal relation between the two events.” Goldsmith v. Bagby Elevator Co.,

Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. & Santa Fe Ry.

Co. v. White, 126 S. Ct. 2405, 2410-16 (2006)). As discussed above, the FCRA

parallels Title VII, and retaliation claims brought under that statute are analyzed

under the same framework as those brought under Title VII. Wilbur v. Corr. Servs.

Corp., 393 F.3d 1192,1195 n.1 (11th Cir.2004).

The filing of an EEOC charge constitutes a “statutorily protected activity.”

See Goldsmith, 513 F.3d at 1277. A materially adverse action is one that “well

might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Burlington N., 126 S. Ct. at 2415 (quotation marks omitted).

“After the plaintiff has established the elements of a claim, the employer has

an opportunity to articulate a legitimate, nonretaliatory reason for the challenged

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employment action as an affirmative defense to liability.” Goldsmith, 513 F.3d at

1277 (citation omitted). If the employer succeeds in discharging this light burden,

the plaintiff may prevail only by “demonstrat[ing] that the proffered reason was

not the true reason for the employment decision. . . . [The plaintiff] may succeed in

this either directly by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine,

101 S. Ct. 1089, 1095 (1981). “The plaintiff bears the ultimate burden of proving

retaliation by a preponderance of the evidence and that the reason provided by the

employer is a pretext for prohibited retaliatory conduct.” Goldsmith, 513 F.3d at

1277 (citation omitted).

The district court did not err in finding Selby established a prima facie case

of retaliation: her complaints of discrimination, filed with the Florida Commission

on Human Relations and Equal Employment Opportunity Commission, were

protected activities; her termination was an adverse employment action; and the

short gap of time between these events created an inference of a causal link.

Further, and contrary to Selby’s argument otherwise, Tyco met its light burden of

articulating a legitimate, non-discriminatory reason for its action: Tyco’s Human

Resources Manager testified he fired Selby after she was insubordinate and left

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work early without a supervisor’s permission. Selby offered no evidence to

dispute this explanation. Accordingly, the district court did not clearly err by

finding Selby failed to prove she was terminated because of her race or national

origin.

Upon review of the record and consideration of the parties’ briefs, we find

no discernible error. Accordingly, we affirm.

AFFIRMED.

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