           Case: 16-11441   Date Filed: 01/09/2017   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11441
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-00411-TCB



BRENDA E. EDWARDS,

                                                            Plaintiff-Appellant,

                                   versus

AMBIENT HEALTHCARE OF GEORGIA, INC.,

                                                          Defendant-Appellee.

                       ________________________

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

                             (January 9, 2017)

Before HULL, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Plaintiff-Appellant Brenda Edwards, a former employee of Defendant-

Appellee Ambient Healthcare of Georgia, Inc. (“Ambient”), appeals the district

court’s dismissal, pursuant to Federal Rule of Civil Procedure 12(b)(6), of her

employment discrimination lawsuit alleging sexual harassment and retaliation

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

VII”). Edwards also appeals the district court’s denial of her motion to amend her

complaint.

       Briefly stated, Edwards alleged that a male employee of Ambient was a

driver who delivered pharmaceutical supplies to patients’ homes or locations.

Edwards alleged that two female patients reported to Edwards, or her subordinate,

that the driver had made inappropriate sexual comments to them when he made the

deliveries. Edwards also alleged that a female caregiver of another patient had

reported to her that the driver had hugged her when he made one delivery and

attempted to hug her on other deliveries. 1

       In her initial complaint, Edwards did not allege that the male employee

sexually harassed her. Edwards did not allege that any of the driver’s

inappropriate conduct occurred at Ambient’s workplace or in the presence of

Edwards or any other female employee. Rather, Edwards alleged that these three

women, who were not Ambient employees, simply reported the harassment to

       1
        Edwards does not clarify how many deliveries the driver made, either in general or those
involving unwanted advances.
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Edwards (or her subordinate), and Edwards in turn informed company

management.

      Edwards alleged that Ambient ignored her complaints about the driver,

created a hostile work environment “by its failure to halt the sexual harassment

conduct of the driver,” and retaliated against her for reporting the harassment.

Because the parties are familiar with the procedural history and the facts most

favorable to Edwards, we will not belabor them further but will proceed directly to

the issues on appeal.

            I.       EDWARDS’S SEXUAL HARASSMENT CLAIM

       On appeal, Edwards argues that the district court erred in dismissing her

sexual harassment claim under Rule 12(b)(6) for failure to state a claim. We

review de novo the district court’s grant of a motion to dismiss for failure to state a

claim. Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

which, accepted as true, states a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the grounds of her entitlement

to relief requires more than labels and conclusions. Id.




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      Title VII makes it unlawful for an employer to discriminate against any

employee with respect to her compensation, terms, conditions, or privileges of

employment because of the employee’s sex. 42 U.S.C. § 2000e-2(a)(1). Although

Title VII does not mention sexual harassment, “it has long been settled that the

statutory phrase ‘terms, conditions, or privileges of employment’ includes within

its scope a discriminatorily hostile or abusive environment.” Hulsey v. Pride

Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004). To prove sexual or gender-

based harassment under Title VII, the plaintiff employee must show that: (1) she

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

(3) the harassment was based on her sex; (4) the sexual harassment was sufficiently

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

discriminatorily abusive work environment; and (5) a basis for holding the

employer liable exists. Id.

      Establishing that sexually harassing conduct was sufficiently severe or

pervasive to alter an employee’s terms or conditions of employment includes a

subjective and an objective component. Mendoza v. Borden, Inc., 195 F.3d 1238,

1246 (11th Cir. 1999) (en banc). That is, the work environment must be one that a

reasonable person would find hostile or abusive and that the victim subjectively

perceives to be abusive. Id. In evaluating the objective severity of the harassment,

we look at the totality of the circumstances and consider: (1) the frequency of the


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conduct; (2) the severity of the conduct; (3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee’s job performance. Id.

       Here, the district court did not err in determining that Edwards’s initial

complaint failed to sufficiently plead facts to state a claim of sexual harassment of

Edwards under Title VII. Edwards based her claim on conduct directed not at

herself, but three other females who were not employees of Ambient. Edwards

was not even present at the time of the alleged sexual harassment of these non-

employees. According to Edwards, these three women reported the alleged sexual

harassment to her (at most) five times over a period of five months.

       A threshold question here is whether three women non-employees reporting

sexual harassment by Ambient’s male driver to Edwards can even give Edwards a

cause of action for sexual harassment against her employer, when she was not the

victim and was not even present when the sexual harassment occurred.2 But we

need not answer that question because the alleged sexual harassment of the non-

employees was not sufficiently severe or pervasive in any event.



       2
        Edwards, of course, argues that the driver’s conduct here gives her a cause of action
against Ambient under Title VII. In support, she relies primarily on Rogers v. EEOC, 454 F.2d
234 (1971); EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068, 1070 (11th Cir. 1990); and
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010). All are
distinguishable. Rogers was decided on a completely different procedural posture and did not
address whether such attenuated claims pass muster under Rule 12(b)(6), and Beverage Canners
and Reeves both involved discrimination or harassment in the workplace directed at employees.
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      To state a claim under Title VII, Edwards must allege facts sufficient to

show not only that harassment occurred, but also that the harassment was

sufficiently severe or pervasive to alter the terms and conditions of her

employment and create a discriminatorily abusive working environment at

Ambient. See Hulsey, 367 F.3d at 1244. This she did not do. As noted above,

Edwards did not allege that any of the driver’s inappropriate comments or conduct

occurred at Ambient’s workplace or in the presence of Edwards or any other

female employee. In her proposed amended complaint, Edwards alleged that the

female patients and caregiver reported the inappropriate conduct to her on a total of

approximately five occasions, and the driver’s reported conduct involved a hug to a

female caregiver and, primarily, inappropriate comments which were mostly

asking the two female patients if they were single or married, whether they were

dating, and staring or leering at them in a “lusty manner.”

      Reviewing her complaints as a whole, Edwards failed to allege facts

demonstrating that the sexual harassment of the two patients and the caregiver was

sufficiently severe or pervasive to alter the terms and conditions of Edwards’s

employment and create a discriminatorily abusive work environment for Edwards.

See Fleming v. Boeing Co., 120 F.3d 242, 245 (11th Cir. 1997) (holding that a

hostile work environment occurs “[w]hen the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or


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pervasive to alter the conditions of the victim’s employment and create an abusive

working environment”) (internal quotation marks and citations omitted); see also

EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068, 1070 (11th Cir. 1990)

(holding that employer discriminated against employees on basis of race where the

plant manager and supervisor “frequently made flagrant, revolting, and insulting

racially derogatory remarks towards and in the presence of blacks”). Edwards’s

factual allegations, accepted as true, do not state a plausible claim of hostile-work-

environment sexual harassment under Title VII. See Ashcroft, 556 U.S. at 678,

129 S. Ct. at 1949.

                 II.    EDWARDS’S RETALIATION CLAIM

      Edwards alleged that, after she reported the driver’s conduct, her complaints

about the driver’s conduct went ignored, a branch manager was demoted for

refusing to fire Edwards after she reported the driver’s conduct, and Ambient

began “harass[ing]” her by increasing her workload, issuing her a negative review,

telling her to “leave confidential matters alone and concentrate on the backlog of

charting,” and “micro-manag[ing]” her work duties.

      A Title VII retaliation claim requires this showing: (1) the plaintiff engaged

in statutorily protected activity; (2) she suffered a materially adverse action; and

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

action. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Protected


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activity includes opposition to “any practice made an unlawful employment

practice” under Title VII. 42 U.S.C. § 2000e-3(a). This is known as the

“opposition clause.” Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555

U.S. 271, 274, 129 S. Ct. 846, 850 (2009). When an employee complains on

behalf of herself or another employee that the employer is engaged in a form of

employment discrimination, including sexual harassment, she is “virtually always”

engaged in protected activity under the opposition clause. See id. at 276, 129 S.

Ct. at 851.

      Here, however, the driver’s alleged actions toward non-employee patients of

Ambient and their caregivers (while reprehensible) is not an “employment practice

made unlawful” by Title VII. See 42 U.S.C. § 2000e-3(a) (prohibiting employers

from discriminating against “any of his employees . . . because he has opposed” an

unlawful employment practice (emphasis added)); Jackson v. Motel 6

Multipurpose, Inc., 130 F.3d 999, 1007 & n.16 (11th Cir. 1997) (noting that

employees’ retaliation claim based on opposition to unlawful discrimination

against motel customers “could not proceed under the familiar Title VII retaliation

statute” because the plaintiffs did not allege that they were discriminated against

for “opposing an unlawful employment practice”). Edwards has not pointed us to

any case law holding that an employee’s discrimination against a third party is an




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unlawful employment practice under Title VII or that opposition to such conduct

constitutes protected activity under Title VII.

       Moreover, even if we were to assume that Edwards engaged in protected

activity when she complained about the driver’s conduct toward third parties,

Edwards did not allege that she suffered a materially adverse action. “[T]o prove

adverse employment action . . . an employee must show a serious and material

change in the terms, conditions, or privileges of employment.” Davis v. Town of

Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). Criticisms, negative evaluations,

and temporary, non-substantial changes in work assignments are not enough. Id. at

1240-45. Here, Edwards did not allege that Ambient cut her pay, took away her

title, or did anything other than make her existing job duties more difficult.3 While

an alteration in work assignments may, in “unusual instances,” constitute a serious

and material change, that it not the case here. See id. at 1245 (citing as an example

McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996), where a

supervisor at a newspaper was reassigned the duties of a janitor, including cleaning

bathrooms, and then transferred to the shipping department, where he was required

to perform physically strenuous tasks).

       Thus, the district court did not err in dismissing Edwards’s retaliation claim.


       3
         In her brief on appeal, Edwards alleges for the first time that Ambient effectively forced
her out of the company. Her allegations do not appear in either her initial complaint or her
proposed amended complaint, and thus we do not consider them.
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        III.    EDWARDS’S MOTION TO AMEND HER COMPLAINT

       While leave to amend a complaint should be freely given where “justice so

requires,” a district court need not allow an amendment where amendment would

be futile. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).4 The district

court correctly determined that amendment would be futile here.

           Edwards’s proposed amended complaint contained essentially two

substantive changes to her initial complaint. 5 First, Edwards alleged that, after she

reported the driver’s conduct to management, the driver began “stalking” her,

parking near her car at work, and leering and grinning at her. Edwards’s new

claims regarding the driver’s conduct toward her personally are barred. A

“plaintiff’s judicial complaint is limited by the scope of the EEOC investigation

which can reasonably be expected to grow out of the charge of discrimination.”

Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004)

(internal quotation marks omitted). Judicial claims that “amplify, clarify, or more

clearly focus” the allegations in the EEOC charge are permitted, but the plaintiff

cannot allege new acts of discrimination. Id. at 1279–80 (quoting Wu v. Thomas,

       4
       A district court’s legal determination that amendment would be futile is reviewed de
novo. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010).
       5
        In her initial complaint, Edwards alleged that the driver made “inappropriate sexual
comments,” but she described none of them. In her proposed amended complaint, Edwards
alleged more detailed facts regarding the driver’s conduct toward the patients and caregiver. In
an abundance of caution, we have already described these additional allegations about the
comments and other behavior in our analysis and conclusion that the alleged harassment was not
severe and pervasive in Part I, above.
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863 F.2d 1543, 1547 (11th Cir. 1989). Here, Edwards’s allegations that the driver

was harassing and “stalking” her personally appear nowhere in her EEOC charge,

which was limited to allegations pertaining to patients and caregivers. Thus,

Edwards has not administratively exhausted this “new” claim of discrimination,

and the district court could not review it.

       Second, Edwards’s proposed amended complaint included additional

allegations about how the conduct by the driver and her managers made her feel

and how it disrupted her job. Edwards alleged that she was “irritated” and

“annoyed” with management’s reaction, or lack thereof, to her complaints about

the driver and claimed that she was “made to feel that the all-male manager group

was laughing at the women, and implicitly acquiescing in this type of sexual

demeaning conduct.” Edwards also alleged that she became scared to go to the

warehouse when the driver was there, which interrupted her work, and, when she

raised this issue with the warehouse manager, he laughed and dismissed her

concerns. Edwards stated that, after her requests that the driver be removed were

met with a response to “mind your business and do your charting,” she felt

“angered, nervous, uncomfortable, annoyed, belittled, humiliated and embarrassed

by the way the manager ignored the incident.”

      All of these allegations, however, go to Edwards’s subjective perception that

the harassment was severe or pervasive. See Mendoza, 195 F.3d at 1246


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(explaining that, in order to state a claim, the employee must subjectively perceive

the harassment as severe and pervasive). This is only half of the equation. A Title

VII claim also requires that the harassment objectively alter the employee’s terms

or conditions of employment. Id. Edwards’s proposed amended complaint

contains not a single allegation demonstrating how the company’s actions created a

workplace “permeated with discriminatory intimidation, ridicule, and insult.” See

Fleming, 120 F.3d at 245 (internal quotation marks omitted).

      Even in light of the proposed amended complaint’s additional allegations,

the complained-of conduct was not objectively frequent, severe, physically

threatening or humiliating, and did not unreasonably interfere with Edwards’s job

performance on any regular basis. The additional allegations also fail to cure the

defects in her Title VII retaliation claim. Because her amended complaint would

still be subject to dismissal for failing to sufficiently allege facts supporting a

hostile-work-environment or retaliation claim under Title VII, the district court

correctly denied Edwards leave to amend her complaint.

                                IV.    CONCLUSION

      For the foregoing reasons, we affirm the district court’s order.

      AFFIRMED.




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