# Jonathan Hall v. Dekalb County Government

> Court of Appeals for the Eleventh Circuit · January 9, 2013 · 503 F. App'x 781

URL: https://www.frixlaw.com/law-library/cases/815065

## Case

- **Full name:** Jonathan HALL, John K. Jackson, Plaintiffs-Appellants, v. DEKALB COUNTY GOVERNMENT, Defendant-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 9, 2013
- **Citations:** 503 F. App'x 781
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/815065

## How later opinions describe it (automated extraction)

- concluding that the district court did not err in holding that the plaintiffs’ restricted use of certain resources was not an adverse employment action when “they failed to demonstrate any tangible harm resulting from these limitations”
- holding that the “occasional denial of . . . overtime,” when an employee consistently earned overtime while employed, was not a material adverse employment action
- finding general allegations of racist behavior insufficient to survive a summary judgment where plaintiffs provided no specific examples of harassment to support their claim

## Opinion text

Case: 12-10101 Date Filed: 01/09/2013 Page: 1 of 22

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-10101
Non-Argument Calendar
________________________

D.C. Docket No. 1:09-cv-03228-WCO

JONATHAN HALL,
JOHN K. JACKSON,

lllllllllllllllllllllllllllllllllllllll l Plaintiffs-Appellants,

versus

DEKALB COUNTY GOVERNMENT,

llllllllllllllllllllllllllllllllllllll l lDefendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(January 9, 2013)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

Jonathan Hall and John K. Jackson, who are African American, appeal the

district court’s grant of summary judgment in favor of the Dekalb County
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Government (“the County”), in their pro se employment action, under Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2, 2000e-3. On

appeal, Hall and Jackson argue that the County: (1) discriminated against them

based on their race by denying them access to equipment and benefits that were

provided to white employees; (2) retaliated against them for filing discrimination

charges with the Equal Employment Opportunity Commission (“EEOC”); and

(3) subjected them to a racially hostile work environment. For the reasons set

forth below, we affirm the district court’s grant of summary judgment to the

County.

I.

At the time when they filed the instant complaint, Hall and Jackson were

both employed by the County as heating, ventilation, and air conditioning

(“HVAC”) mechanics. During their employment, George Smith was the Assistant

Director of Building and Maintenance Operations, and David Fisher was the

Director of Facility Management.

On November 13, 2009, Hall and Jackson filed a joint complaint against the

County, alleging violations of Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3.

Specifically, they challenged “employment transfers, use of company facilities and

equipment[], fringe benefits and other terms and condition[s] of employment, [and

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the County’s] acts of harassment and retaliation” based on their race. In support,

they each submitted an EEOC complaint that had been filed on August 28, 2007.

In those complaints, Hall and Jackson alleged that they had been “subjected to

harassment, different terms and conditions of employment, and denied benefits.”

In an attachment to their complaint, Hall and Jackson specifically alleged

that the County denied them the opportunity to learn and operate its Building

Automated Systems (“BAS”), while other white employees, such as Rick Ricker,

were allowed unrestricted access to the BAS. After several complaints and

grievance meetings, the County permitted Hall and Jackson to learn the BAS with

limitations and restrictions. In 2006, Jackson was permitted to perform morning

BAS “checks,” but later, the County assigned Mike Jackson, a white employee, to

perform the checks. Eventually, the County allowed Hall to operate the BAS, but

it required him to be accompanied by Ron Pennington, a white employee, “for

training purposes.” After Hall spent months repairing the BAS and “educating

Pennington,” the County removed Hall from the BAS assignment, but allowed

Pennington to “work freely on the system.”

As to employment benefits, Hall and Jackson alleged that the County did

not allow them to earn the same amount of overtime and “comp time” benefits as

Ricker. After several complaints and grievance meetings, Hall and Jackson were

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allowed to receive some comp time with limitations and restrictions. Finally, Hall

and Jackson alleged that the County retaliated against them for filing their EEOC

complaints. Specifically, the County removed Jackson from the HVAC “crash

team,” and Hall was “written up for occurrences that happened three and four

weeks prior.” Hall and Jackson alleged that the County took these retaliatory

actions after receiving their EEOC complaints.

Following discovery, the County filed an amended motion for summary

judgment, arguing that the plaintiffs had failed to establish that they had

experienced an adverse employment action, as required to set forth a prima facie

case of discrimination or retaliation under Title VII. Further, as to the race

harassment or hostile work environment claim, the allegations in the complaint did

not establish the required level of severity or pervasiveness.

In support of its motion for summary judgment, the County submitted a

number of exhibits, including depositions of Hall and Jackson, affidavits from

Smith and Fisher, work assignment logs, and records of the overtime and comp

time benefits that were received by the County’s employees from 2006 to 2008.

In their response to the County’s motion for summary judgment, Hall and

Jackson asserted that Pennington, a white mechanic, referred to Hall as a “boy,”

and when Hall reported the incident, Smith created “a hostile working

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environment” by laughing in response. Additionally, they alleged that the County

hired an attorney to “tamper with witness testimony” in an effort to discredit

Hall’s version of the incident. These actions constituted “sufficiently severe or

pervasive” harassment to alter the terms and conditions of Hall’s and Jackson’s

employment.

The magistrate judge issued a report and recommendation that the district

court grant the County’s motion for summary judgment. As to racial

discrimination, the magistrate found that, even if Hall and Jackson were denied the

opportunity to work or train on the BAS, the denial did not constitute a “materially

adverse” employment action. Although the plaintiffs believed that assigning them

to work with the BAS would be more efficient and would increase their

marketability, Title VII does not require an employer to be efficient or make its

employees marketable. Additionally, an alternative conclusion would potentially

give rise to a variety of unfair work assignment claims that should not be litigated

in federal court. In sum, their lack of access to the BAS did not constitute “a

serious and material change in the terms, conditions, or privileges of

employment.”

Further, the magistrate found that the plaintiffs failed to establish that the

denial of overtime or comp time benefits constituted a materially adverse

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employment action. Hall and Jackson acknowledged that they had consistently

earned comp time and overtime while employed with the County, and personnel

records showed that they did not receive significantly less comp time or overtime

than white employees. Thus, the occasional denial of comp time or overtime did

not constitute an adverse employment action. Because they did not experience a

materially adverse employment action, Hall and Jackson failed to establish a

prima facie case of race discrimination.

As to retaliation, the magistrate found that Jackson’s reassignment from the

crash team to the preventative maintenance team (“PM team”) did not constitute

an adverse employment action because his preventative maintenance duties were

within his responsibilities as an HVAC mechanic, and the reassignment did not

result in a reduction in pay or any changes in work hours or benefits. As to Hall’s

retaliation claims, his October 2007 counseling letter did not constitute an adverse

employment action because the letter did not result in a reduction in salary, work

hours, or responsibilities. As to Hall’s 2008 suspension, he established a

materially adverse employment action, but he failed to show a causal connection

between the 2008 suspension and his EEOC charge, which was filed a year earlier.

Finally, as to Hall’s claim of racial harassment, the magistrate found that he

failed to establish a prima facie case of a racially hostile work environment.

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Hall’s reliance on the incident, during which another employee called him a “boy,”

could not form the basis of a claim for racially hostile work environment because

it occurred in December 2009, more than a month after he filed the instant

complaint. Even considering this slur, the single incident, while improper, does

not rise to the level of severity or pervasiveness necessary to raise a Title VII

racial harassment claim. For these reasons, the magistrate recommended that the

court grant the County’s motion for summary judgment.

Hall and Jackson objected to the magistrate’s report, reasserting their prior

arguments. Additionally, as to the racial harassment claim, Hall referenced:

(1) the “Pennington ‘Boy’ incident” that occurred on December 16, 2009, (2) a

termination letter for Hall that Fisher drafted the day before the incident; and

(3) the County’s action in hiring an attorney, who created a fraudulent report

regarding Hall’s and Jackson’s Title VII claims.

After the County’s response, the district court adopted the magistrate’s

report and recommendation. The court noted that Hall and Jackson had not sought

permission to supplement their complaint to add allegations regarding the 2009

termination letter or the attorney’s investigation. Moreover, even considering the

additional allegations, Hall and Jackson failed to establish a prima facie case of

retaliation or a racially hostile work environment. Hall and Jackson repeatedly

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argued that evidence would show that they were subjected to discrimination and

retaliation, but their conclusory allegations were insufficient to establish a genuine

dispute as to any material fact. Based on these findings, the district court granted

the County’s motion for summary judgment.

II.

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

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

1012, 1023 (11th Cir. 2000) (en banc). “[S]ummary judgment is appropriate if the

evidence before the court shows that there is no genuine issue as to any material

fact.” Id. (quotation omitted). “A genuine issue of material fact does not exist

unless there is sufficient evidence favoring the nonmoving party for a reasonable

jury to return a verdict in its favor.” Id. (quotation omitted). In making this

determination, we “make all reasonable inferences in favor of the” nonmoving

party. Id. (quotation omitted). Moreover, mere conclusions, unsupported factual

allegations, and statements that are based on belief, as opposed to personal

knowledge, are insufficient to overcome a summary judgment motion. Ellis v.

England, 432 F.3d 1321, 1326-27 (11th Cir. 2005). In general, pro se pleadings

are held to a less stringent standard than pleadings drafted by attorneys and will be

liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

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1998).

As a preliminary matter, Hall and Jackson raise issues and discuss facts on

appeal that (1) are irrelevant to their Title VII claims, or (2) were not presented to

the district court. For example, they allege numerous incidents of misconduct by

various coworkers, and they assert that the County failed to discipline “similar

non-protected employees” for “constant violations” of the County’s policies.

Further, they allege that the County discriminated against Hall by failing to

promote him or accommodate his knee injury.

We generally will not consider on appeal issues which a party failed to raise

before the district court. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004). To properly preserve an issue for appeal, a party

must first clearly present it to the district court in such a way as to afford the

district court an opportunity to recognize and rule on it. United States v. Land,

Winston Cnty., 163 F.3d 1295, 1302 (11th Cir. 1998). To the extent that Hall and

Jackson raise issues that were not clearly presented to the district court, we do not

address those issues.

Additionally, Hall and Jackson raise arguments related to incidents that

occurred after they filed the instant Title VII action on November 13, 2009.

Specifically, they allege that on December 16, 2009, Pennington, a white

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coworker, referred to Hall by using a racial slur, when he called him “boy.”

Further, they allege that the County hired an attorney to investigate their racial

discrimination claims and that the attorney produced a fraudulent report. Finally,

they assert that, on December 15, 2009, Fisher drafted a letter terminating Hall,

which was later withdrawn, for the purpose of intimidating Hall.

At the summary judgment stage, the proper procedure for plaintiffs to assert

a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). A

plaintiff may not amend his complaint through argument in a brief opposing

summary judgment. Id.

As noted by the district court, Hall and Jackson never filed a Rule 15(a)

motion to amend their complaint to include allegations regarding the December

2009 incidents. Instead, they asserted these claims in response to the County’s

motion for summary judgment and in their objections to the magistrate’s report.

As such, these claims were not properly before the district court. Gilmour, 382

F.3d at 1315. Regardless, the claims were insufficient to survive summary

judgment. As discussed below, the district court properly determined that a single

racial slur does not establish a racially hostile work environment. Further, Hall’s

and Jackson’s claims regarding the attorney’s allegedly fraudulent investigation

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are unsupported by any evidence, and appear to be based solely on their subjective

beliefs. As such, those claims are also insufficient to survive summary judgment.

See Ellis, 432 F.3d at 1326-27. Finally, even if Fisher drafted a termination letter

in December 2009, Hall concedes that the letter was later withdrawn.

III.

Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). As to any

Title VII claim, the plaintiff bears the ultimate burden of proving discriminatory

treatment by a preponderance of the evidence. Crawford v. Carroll, 529 F.3d 961,

975 (11th Cir. 2008). When a claim is supported by circumstantial evidence, the

district court analyzes the case using the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). Under McDonnell Douglas, the plaintiff has the initial burden to establish

a prima facie case of disparate treatment by showing that: (1) he is a member of a

protected class; (2) he was subjected to adverse employment action; (3) his

employer treated similarly situated employees outside of his class more favorably;

and (4) he was qualified to do the job. McCann v. Tillman, 526 F.3d 1370, 1373

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(11th Cir.2008). If the plaintiff presents a prima facie case, the employer must

offer a legitimate, non-discriminatory reason for the adverse employment action.

Id. If the employer does so, the burden shifts back to the plaintiff to show that the

stated reason is a mere pretext for unlawful discrimination. Id.

To qualify as an adverse employment action, an employer’s action that falls

short of an ultimate employment decision, “must, in some substantial way, alter

the employee’s compensation, terms, conditions, or privileges of employment,

deprive him or her of employment opportunities, or adversely affect his or her

status as an employee.” Crawford, 529 F.3d at 970 (alterations omitted).

Specifically, a Title VII claim requires the employee to establish that he

experienced “a serious and material change in the terms, conditions, or privileges

of employment.” Id. at 970-71. Although Title VII does not require proof of

direct economic consequences, the asserted impact cannot be speculative and must

at least have a tangible adverse effect on the plaintiff’s employment as “viewed by

a reasonable person in the circumstances,” regardless of the employee’s subjective

view. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001).

Federal courts do not sit as “super-personnel department[s]” that reexamine

an employer’s business decisions. Id. at 1244. “Work assignment claims strike at

the very heart of an employer’s business judgment and expertise because they

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challenge an employer’s ability to allocate its assets in response to shifting and

competing market priorities.” Id. As such, applying the adverse action

requirement is “especially important” when a claim is predicated on an employee’s

disagreement with his employer’s reassignment of job tasks. Id. In the majority of

instances, an employee alleging a change in work assignments, without any

tangible harm, will be outside the protection provided by Title VII’s

anti-discrimination clause. Id. at 1244-45 (rejecting an employee’s claim that a

change in his work assignments, resulting in a “loss of prestige,” constituted a

materially adverse employment action).

To show pretext, the plaintiff must come forward with evidence sufficient to

permit a reasonable factfinder to conclude that the reasons given by the employer

were not the real reasons for the adverse employment decision. Wascura v. City of

South Miami, 257 F.3d 1238, 1243 (11th Cir. 2001). A reason is not pretext for

discrimination unless it is shown both that the reason was false and that

discrimination was the real reason. St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).

As an initial matter, it is undisputed that Hall and Jackson, who are African

American, are members of a protected class, and that they are qualified for their

positions as HVAC mechanics. Thus, the only issues in determining whether they

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have established a prima facie case of race discrimination are whether they

experienced an adverse employment action and whether similarly situated

employees outside their protected class were treated more favorably. See

McCann, 526 F.3d at 1373.

The district court did not err in concluding that Hall’s and Jackson’s

allegedly limited use of the BAS was not an adverse employment action. They put

forth no evidence that any limitations of their ability to train on and use the BAS

affected the terms, conditions, or privileges of their employment as HVAC

mechanics, or that limited access to the BAS constituted a “serious and material”

change in their employment. See Crawford, 529 F.3d at 970-71. Notably, it is

undisputed that Hall and Jackson were not denied all access to the BAS. In his

deposition, Jackson admitted that, prior to transferring to the PM team, he was

permitted to use the BAS with limitations, and he testified that, during his time

working for the County, he had never experienced a reduction in pay or any

change in his work hours or benefits. As to the benefits of using the BAS, Hall

asserted that additional experience with the BAS would make him more

marketable as a mechanic. However, he also asserted that he was certified to

operate the BAS, he trained another employee on the system, and he was more

skilled at using the BAS than other employees. Further, Hall and Jackson both

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testified that working with the BAS was not required for HVAC mechanics. As to

the County’s process for assigning work, Smith stated in his affidavit that work

assignments were based on the County’s daily needs, and as such, no employee

could consistently receive the same assignment. Even if Hall’s and Jackson’s use

of the BAS was more limited than other employees, they failed to demonstrate any

tangible harm resulting from these limitations, and we will not reexamine the

County’s business decisions regarding how to allocate its resources in assigning

work. See Davis, 245 F.3d at 1244-45.

The district court also did not err in finding that Hall and Jackson failed to

establish that a limitation on their overtime and comp time benefits was an adverse

employment action, and regardless, they failed to show that similarly situated

white employees were treated more favorably. Because overtime and comp time

opportunities affected compensation, a denial of such opportunities could

constitute an adverse action. See Crawford, 529 F.3d at 970. However, it is

undisputed that Hall and Jackson received these benefits throughout their

employment with the County. To support their race discrimination claim, they

alleged that they received less overtime and comp time benefits than Ricker, a

white HVAC mechanic. In his affidavit, Smith conceded that, in 2006 and 2007,

Ricker earned more comp time than Hall and Jackson. However, even though

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Ricker earned more comp time during these two years, the evidence did not

support Hall’s and Jackson’s claim that they were treated less favorably than white

employees.

To the contrary, Smith submitted personnel records showing that, in several

instances, Jackson and Hall earned more benefits than white HVAC mechanics.

For example, in 2006, Jackson earned 57 hours of overtime and 44.75 hours of

comp time, while Ricker earned only 4.75 hours of overtime and Mike Jackson, a

white HVAC mechanic, earned only 17.75 hours of overtime and no comp time.

Further, in 2007, Hall earned 54.75 hours of comp time and Jackson earned 89.25

hours of comp time, while Pennington, a white HVAC mechanic, earned no comp

time. Additionally, in 2008, Hall earned more comp time than both Ricker and

Mike Jackson. Accordingly, the district court properly found that Hall and

Jackson consistently received overtime and comp time benefits, and the occasional

denial of additional benefits did not constitute a serious and material change in

their employment. Crawford, 529 F.3dat 970-71. Moreover, they failed to show

that white HVAC mechanics were treated more favorably with regard to these

benefits. McCann, 526 F.3d at 1373.

Finally, as to the County’s asserted legitimate, non-discriminatory reason

for Ricker’s large amount of comp time in 2007, Smith declared that Ricker earned

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more comp time due to his assistance with an installation project. Hall and

Jackson presented no evidence to suggest that the installation project was asserted

as pretext for race discrimination. See Wascura, 257 F.3d at 1243; St. Mary’s

Honor Center, 509 U.S. at 515, 113 S.Ct. at 2752. In fact, Jackson testified that he

did not know of any other employees who received as much comp time as Ricker,

which suggests that Ricker also earned more comp time than other white

employees. Accordingly, the district court properly granted summary judgment to

the County as to Hall’s and Jackson’s race discrimination claim.

IV.

To establish a claim of retaliation under Title VII, a plaintiff mUST prove

that: (1) he engaged in statutorily protected activity; (2) he suffered a materially

adverse action; and (3) there was a causal connection between the protected

activity and the adverse action. See Butler v. Ala. Dep’t of Transp., 536 F.3d

1209, 1212-13 (11th Cir. 2008); 42 U.S.C. § 2000e. In a retaliation case, a

materially adverse action is one that “might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Burlington N. and Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345

(2006). The acts must be significant and not trivial. Id.

A plaintiff may satisfy the causation element by showing that the protected

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activity and the adverse action were not “completely unrelated.” Higdon v.

Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). A plaintiff can establish causation

by showing a close temporal proximity between the statutorily protected activity

and the adverse action, “[b]ut mere temporal proximity, without more, must be

very close.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007). (quotation omitted). Accordingly, when a plaintiff relies on temporal

proximity alone 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. A three to fourth month gap is insufficiently proximate to

establish causation. Id.

Finally, under the McDonnell Douglas framework, if a plaintiff employee

makes out a prima facie case of retaliation, and the employer articulates a

legitimate, non-discriminatory reason for the action, the plaintiff must then show,

by a preponderance of the evidence, that the reason is pretextual. Crawford, 529

F.3d at 976 (citation and quotation marks omitted). “The plaintiff must meet the

reason proffered [by his employer] head on and rebut it.” Crawford v. City of

Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (citation omitted).

The district court did not err in finding that Hall and Jackson failed to

establish a prima facie case of retaliation. Specifically, Hall’s written counseling,

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in October 2007, was not materially adverse because he failed to allege that it had

any significant impact on his employment. According to Hall, he received the

written counseling for working with Jackson, even though he had been given

permission to do so. Although Hall argued that the counseling was unjustified, he

failed to explain how it negatively impacted his employment. As such, the

counseling was not an action that might have “dissuaded a reasonable worker from

making or supporting a charge of discrimination.” See Burlington, 548 U.S. at 68,

126 S.Ct. at 2415. Further, as to Hall’s suspension, he failed to establish a causal

connection by temporal proximity because there was a substantial delay between

the EEOC complaint, in August 2007, and Hall’s suspension a year later, in

September 2008. See Thomas, 506 F.3d at 1364. Further, he failed to point to any

other evidence to suggest that his suspension was based on the EEOC complaint.

Finally, Jackson’s reassignment to the PM team in November 2007 did not

constitute an adverse employment action. In his deposition, Jackson testified that

the County’s asserted reason for the transfer was that he did not have a “warm air

license.” Further, he stated that Mike Jackson, who did not have such a license,

was also transferred to the PM team. As to his position as an HVAC mechanic,

Jackson noted that his work duties changed daily, and he never received a

reduction in pay or a change in his work hours or benefits. Accordingly, Jackson

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failed to present any evidence to suggest that his reassignment to the PM team, as

opposed to the crash team, negatively and materially impacted the conditions of

his employment. Thus, the reassignment was not an action that might have

“dissuaded a reasonable worker from making or supporting a charge of

discrimination.” See Burlington, 548 U.S. at 68, 126 S.Ct. at 2415.

Regardless, even if the reassignment constituted a materially adverse

employment action, the County asserted that Jackson was reassigned because he

lacked a certain commercial licence, and he failed to directly rebut this legitimate,

non-discriminatory reason. See Crawford, 482 F.3d at 1308. In fact, Jackson

conceded that he was transferred along with another employee, Mike Jackson, who

also lacked the same license. He now alleges that another mechanic, who lacked a

license, was not transferred. However, he failed to raise this claim before the

district court, and in any event, unsupported factual allegations are insufficient to

survive summary judgment. See Access Now, 385 F.3d at 1331; Ellis, 432 F.3d at

1326-27. Accordingly, the district court properly granted summary judgment as to

Hall’s and Jackson’s retaliation claims.

V.

Title VII prohibits a racially hostile work environment where “a series of

separate acts . . . collectively constitute one ‘unlawful employment practice.’”

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McCann, 526 F.3d at 1378. To establish a hostile work environment claim, an

employee must show, among other things, that the harassment was sufficiently

severe or pervasive to alter the terms and conditions of employment and create a

discriminatorily abusive working environment. Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Further, “Title VII is only implicated

in the case of a workplace that is permeated with discriminatory intimidation,

ridicule and insult, not where there is the mere utterance of an epithet.” Id. at

1276-77 (quotations and alteration omitted). In McCann, we found that a black

employee’s allegations that a white employee called her “girl” and two male black

employees “boys,” and that another coworker referred to a former black employee

as a “nigger bitch” did not amount to severe or pervasive harassment. McCann,

526 F.3d at 1378-79. We stated that “[a]lthough offensive, such instances of

racially derogatory language alone, extending over a period of more than two

years, [were] too sporadic and isolated to establish that her employers’ conduct

was so objectively severe and pervasive as to alter the terms and conditions of her

employment.” Id. at 1379.

The district court did not err in finding that Hall and Jackson failed to

establish a hostile work environment or racial harassment claim. Their complaint

failed to allege a single specific instance of racially harassing conduct in the

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workplace. Moreover, even considering Pennington’s racial slur, which was not

alleged in the complaint, Hall’s allegations reference “the mere utterance of an

epithet,” not a workplace that was permeated with discriminatory intimidation.

See Miller, 277 F.3d at 1276-77. Although Hall and Jackson allege that they were

subjected to years of daily harassment, they fail to provide any specific examples

of racial harassment to support their claim. Their conclusory, unsupported

allegations are insufficient to survive a motion for summary judgment. See Ellis,

432 F.3d at 1326-27.

For the foregoing reasons, we affirm the district court’s grant of summary

judgment to the County.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/815065. Public record. Not legal advice.