                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 10-12460                ELEVENTH CIRCUIT
                            Non-Argument Calendar               JULY 7, 2011
                          ________________________               JOHN LEY
                                                                  CLERK
                    D.C. Docket No. 2:08-cv-00952-JES-SPC

LORI SMITH,

                                                        Plaintiff-Appellant,

                                     versus

NAPLES COMMUNITY HOSPITAL, INC.,
a Florida not-for-profit corporation,

                                                        Defendant - Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (July 7, 2011)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Lori Smith appeals the district court’s grant of summary judgment in favor of
the defendant, Naples Community Hospital, Inc. (“NCH”), as to her claims of a

gender-based hostile work environment, retaliatory elimination of her position and

termination, and discriminatory elimination of her position and termination in

violation Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§§ 2000e-2(a) and 2000e-3(a), and the Florida Civil Rights Act of 1992 (“FCRA”),

Fla. Stat. § 760.10(1), (7).

      Smith raises four arguments on appeal. First, Smith argues that the district

court erred in granting NCH summary judgment on her hostile-work-environment

claim because she demonstrated that she suffered objectively severe or pervasive

harassment. Next, Smith argues that the district court erred in granting summary

judgment to NCH on her retaliation claim because (A) NCH failed to articulate

legitimate, non-retaliatory reasons for eliminating her position and terminating her

employment, as it could not identify the decision-maker responsible, or the reasons,

for the elimination of her position and subsequent termination; and alternatively,

(B) Smith presented sufficient evidence to show that NCH’s legitimate,

non-retaliatory reasons for eliminating her position and terminating her

employment were pretextual. Finally, Smith argues that the district court erred in

finding that she failed to establish a prima facie case of gender discrimination in

relation to her termination.

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      Relevant to the instant appeal, the record supports that Smith worked as the

Administrative Director for Oncology Services (“ADOS”) at NCH and, in that

capacity, she provided administrative oversight for many of NCH’s oncology-

related departments, including its medical oncology physician practice group and

its radiation oncology practice. Smith came under the supervision of Kevin

Cooper, and she alleged that Cooper’s behavior toward her on many occasions

created a hostile work environment. NCH closed its medical oncology physician

practice group and sold its radiation oncology practice. Smith’s position as ADOS

was eliminated and her employment was terminated shortly thereafter. NCH

submitted that the elimination of Smith’s position was due to a legitimate business

reason—Smith’s remaining duties as ADOS did not justify her continued

employment. Smith argues on appeal, however, that the elimination of her

position and termination was a pretext for retaliation and discrimination.

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

the same legal standard used by the district court. Johnson v. Bd. of Regents of

Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual inferences

in a light most favorable to the non-moving party. Id. at 1243. Summary judgment

is appropriate where “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The

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moving party bears the burden of production. Fickling v. United States, 507 F.3d

1302, 1304 (11th Cir. 2007). If the moving party meets this burden, “the

nonmoving party must present evidence beyond the pleadings showing that a

reasonable jury could find in its favor.” Id. “Speculation does not create a genuine

issue of fact.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)

(quotation omitted). We have stated that “the plain language of Rule 56(c)

mandates the entry of summary judgment against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Johnson, 263

F.3d at 1243 (quotations and alteration omitted). Ultimately, we “may affirm a

judgment on any legal ground, regardless of the grounds addressed and relied upon

by the district court.” Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235-36

(11th Cir. 2004).

      Both Title VII and the FCRA prohibit employers from discriminating

“against any individual with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex” or in retaliation for

making a charge of sex-based discrimination. 42 U.S.C. §§ 2000e-2(a) and

2000e-3(a); Fla. Stat. § 760.10(1)(a), (7). Because the FCRA is patterned after Title

VII, courts generally apply Title VII case law to discrimination claims brought

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under the FCRA. Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir.

2004). Accordingly, we will not separately analyze Smith’s FCRA claims.

                                           I.

      Under Title VII, a hostile-work-environment claim is established through

proof that “the workplace is permeated with discriminatory intimidation, ridicule,

and insult that is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993)

(quotations and citation omitted). In order to establish a hostile-work- environment

claim, a plaintiff must show that (1) she belongs to a protected group, (2) she has

been subject to unwelcome harassment, (3) the harassment was based on a

protected characteristic, (4) the harassment was sufficiently severe or pervasive to

alter the terms and conditions of employment and create a discriminatory abusive

working environment, and (5) the employer is responsible for such environment

under either a theory of vicarious or of direct liability. Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

      Only the fourth element is at issue in this appeal. Either severity or

pervasiveness suffices to establish the fourth element. Reeves v. C.H. Robinson

Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc). Additionally, the

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fourth element of the hostile-work-environment test contains both a subjective and

objective component. The employee must “subjectively perceive” the harassment

as severe or pervasive enough to change the terms or conditions of employment,

and the district court must find that this perception was objectively reasonable.

The objective severity or pervasiveness of harassment “should be judged from the

perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.” Reeves, 594 F.3d at 809 (quotations omitted).

      On this record, we find no reversible error in the district court’s conclusion

that Smith failed to show that she suffered from severe or pervasive harassment

that changed the conditions of her employment. The district court did not err in

finding that Smith produced sufficient evidence to create an issue of fact as to

whether Cooper’s conduct was prompted by gender animus because there was

record evidence that Cooper treated women differently than he treated men and that

his differential treatment was based on gender and was disadvantageous to women.

Likewise the court did not err in finding that Smith failed to establish that the

alleged harassment was sufficiently severe or pervasive. Much of the conduct of

which Smith complained did concern annoyances and communication issues that

did not come close to creating a hostile work environment. Smith’s “more

substantial allegations” involving three instances between November 2007 and

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April 2008 where Cooper acted in a manner that was excessively aggressive, angry,

and physically threatening, and the 2003 incident where Cooper went “ballistic”

were not sufficiently severe to alter the conditions of Smith’s employment and

create a hostile work environment. As to the frequency of the alleged conduct, it

was notable that Smith complained that Cooper’s interactions with her were

infrequent and that he ignored her. Taking the cumulative effect of Cooper’s lack

of communication, his make-work assignments, his “petty slights,” the screaming

incidents, and the other conduct Smith identified, Smith failed to show that the

conduct was sufficiently severe or pervasive to state a hostile-work-environment

claim.

                                            II.

         Title VII also prohibits retaliation in the employment arena:

         It shall be an unlawful employment practice for an employer to
         discriminate against any of his employees . . . because he has opposed
         any practice made an unlawful employment practice by this
         subchapter, or because he has made a charge, testified, assisted, or
         participated in any manner in an investigation, proceeding, or hearing
         under this subchapter.

42 U.S.C. § 2000e-3(a). A plaintiff must first establish a prima facie case by either

direct or circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266

(11th Cir. 1999) (discrimination case). A retaliation claim based on circumstantial



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evidence is analyzed according to the burden-shifting framework established by

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

(1973). Goldsmith v. City of Artmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993).

Accordingly, once the plaintiff has met her burden of establishing a prima facie

case of retaliation, the employer “may come forward with legitimate reasons for the

employment action to negate the inference of retaliation.” Id. at 1163. If the

employer offers legitimate reasons for the employment action, “the plaintiff then

bears the burden of proving by a preponderance of the evidence that the reasons

offered . . . are pretextual.” Id.

       Here, the record is undisputed that NCH offered a legitimate, non-retaliatory

reason for eliminating Smith’s position and terminating her employment, and Smith

failed to carry her burden of demonstrating that NCH’s proffered explanation was

pretextual. Smith’s position was eliminated because her entire practice group was

eliminated, and while some of Smith’s duties outside of the radiation oncology

practice were retained, those duties were assumed by other NCH employees. NCH

satisfied its burden to provide legitimate business reasons for terminating Smith

and the court did not err in concluding that none of Smith’s arguments met NCH’s

reasons head on. Because there was ample evidence that Smith’s termination was

due to legitimate business reasons, NCH was entitled to summary judgement on

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Smith’s retaliation claim.

                                      III.

      For the same reasons described above, we affirm the district court’s grant of

summary judgment to NCH on Smith’s gender discrimination claim.

      AFFIRMED.




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