                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                            No. 10-15889                APRIL 18, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 3:08-cv-00501-CLS



CASSANDRA RENEE NICHOLS,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                            versus

VOLUNTEERS OF AMERICA, NORTH ALABAMA, INC.,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.

                                     ________________________

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

                                           (April 18, 2012)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Cassandra Renee Nichols appeals the summary judgment in favor of her

former employer, Volunteers of America, North Alabama, Inc., and against her
complaint in which she alleged racial discrimination in employment, 42 U.S.C. §§

1981, 2000e-2(a)(1); retaliation, 42 U.S.C. § 2000e-3(a); and a hostile work

environment, 42 U.S.C. § 2000e-2(a)(1). We affirm in part, vacate in part, and

remand for further proceedings.

                               I. BACKGROUND

      Nichols is an African-American woman who began working for Volunteers

in 2005 in Florence, Alabama. Volunteers provides services to disadvantaged

individuals. When Nichols started with Volunteers, her title was house manager I.

As a house manager I, Nichols earned $7.69 an hour. Nichols’s immediate

supervisor was Sonja King, an African-American woman. Teresa Stephenson, a

white woman, served as the program director for the operations of Volunteers in

Florence. Stephenson supervised King. Stephenson reported to Victor Tucker, a

white man who is the chief executive officer of Volunteers.

      Nichols was promoted to house manager II in March 2006. As a house

manager II, Nichols gained supervisory responsibilities and received a pay

increase to $8.50 an hour. King remained Nichols’s direct supervisor, but other

employees at Volunteers—including Amy Johnson and Sarah Rickard—also

supervised Nichols. Nichols maintains that Stephenson, Johnson, Rickard, and

other employees at Volunteers “regularly used the word ‘nigger’” and disparaged

                                         2
black employees at work. Nichols asserts that she reported this racially charged

behavior to King and the human resources department at Volunteers.

      In September 2006, an accountant at Volunteers began to suspect that

Nichols had altered her time sheets to reflect that she had worked more time than

she actually had. The accountant reported these suspicions to the human resources

department. Tucker placed Nichols on administrative leave when he learned about

the alleged alterations. Tucker sent Nichols a letter on October 3, 2006, that

explained his decision to place her on administrative leave. In the letter, Tucker

also informed Nichols that company policy prohibited her from communicating

with the staff of Volunteers while she was on administrative leave.

      Volunteers conducted an investigation into whether Nichols had falsified

her time sheets to reflect that she worked more time than she actually had.

Although the investigation did not establish that Nichols had falsified her time

sheets, Volunteers discovered in its investigation that Nichols had violated several

company policies, both before and during her administrative leave. Volunteers

learned that Nichols had communicated with Volunteers staff members while she

was on administrative leave and had used for personal calls a cell phone that

Volunteers had issued to her.

      Volunteers reinstated Nichols on November 8, 2006. On December 9, 2006,

                                         3
Tucker demoted Nichols from house manager II to house manager I and reduced

her pay. According to Tucker, he demoted Nichols because she had made

hand-written time entries on her time sheets, had contacted Volunteers staff while

on administrative leave, and had used a company cell phone for personal calls.

Nichols asserts that Stephenson made the decision to demote Nichols “regardless

of this result of the investigation.” Melissa Castle, a white woman, filled the

house manager II position.

      Nichols filed a complaint against Volunteers that she had suffered a racially

hostile work environment, had been discriminated against based on her race, and

had suffered retaliation for reporting claims of racial discrimination to her

supervisors. Nichols also asserted various claims under Alabama law that are not

relevant to this appeal.

      Volunteers moved for summary judgment. After Nichols filed a response to

that motion, Volunteers filed a motion to strike the evidentiary submissions that

Nichols relied on to support her response. The district court denied the motion to

strike as moot, and it granted summary judgment in favor of Volunteers.

                           II. STANDARD OF REVIEW

      “This Court reviews de novo summary judgment rulings and draws all

inferences and reviews all evidence in the light most favorable to the non-moving

                                          4
party.” Craig v. Floyd County, Ga., 643 F.3d 1306, 1309 (11th Cir. 2011)

(internal quotation marks omitted). “Summary judgment is appropriate ‘if the

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(a)). “If the nonmoving party fails to ‘make a showing sufficient to establish the

existence of an element essential to that party’s case, . . . there can be no genuine

issue as to any material fact, since a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.

Ct. 2548, 2552 (1986)).

                                 III. DISCUSSION

      Nichols advances four arguments on appeal, and we address each argument

in turn. First, we address whether the district court erred when it determined that

Nichols abandoned her claim of a hostile work environment. Second, we discuss

whether the district court erred when it granted summary judgment against

Nichols’s claim of racial discrimination. Third, we address whether the district

court erred when it granted summary judgment against Nichols’s claim of

retaliation. Finally, we address whether Nichols waived any argument that she

was constructively discharged by Volunteers.

                                           5
     A. Nichols Did Not Abandon Her Claim of a Hostile Work Environment.

      Nichols argues that the district court erred when it ruled that Nichols

abandoned her claim of a hostile work environment. The district court stated that

Nichols “offered no response to [the] well-supported arguments [of Volunteers]

that summary judgment should be granted on” Nichols’s claim. Based on our

review of the record, we agree with Nichols that the district court erred.

       Title VII protects employees from being required “to work in a

discriminatorily hostile or abusive environment.” Mendoza v. Borden, Inc., 195

F.3d 1238, 1244 (11th Cir. 1999) (en banc) (internal quotation marks omitted). “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 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) (quoting Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)). This Court has

explained that a plaintiff who alleges a hostile work environment claim must prove

(1) that she belongs to a protected group, (2) that she has been subject to

unwelcome harassment, (3) that the harassment must have been based on a

                                           6
protected characteristic of the employee, (4) that the harassment was sufficiently

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

discriminatorily abusive working environment, and (5) that the employer is

responsible for that environment under either a theory of vicarious or of direct

liability. See, e.g., id.

       Volunteers argued in the district court that Nichols’s claim of a hostile work

environment claim failed because “the alleged harassment was not sufficiently

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

a discriminatorily abusive work environment.” Volunteers argued that “even if

Nichols could establish a hostile environment, Volunteers was not liable because

Nichols did not reasonably avail herself of Volunteers’ anti-harassment policies.”

In her response, Nichols argued that “[i]t was a racially hostile work environment

at [Volunteers] every day.” And Nichols described the evidence that supported

her claim.

       Nichols presented sufficient evidence to create a genuine issue of material

fact about whether the harassment she allegedly suffered at Volunteers was severe

or pervasive. For example, during her deposition, Nichols testified that

“everyday” at Volunteers she heard Stephenson voice her disapproval of

interracial relationships. Nichols testified that she heard Rickard use the word

                                          7
nigger “maybe more than five” times. In her affidavit, Nichols stated that she

attended a meeting during which her supervisors “talked about how they disliked

and hated black men and how black men went to white women because all black

women were nasty, dumb, stupid, and worthless, and that they hated all

relationships between black men and white women.” Nichols attested that she

“personally observed” that Stephenson and Rickard talked “daily about how they

hated black men and that if black women were not so ‘nasty’, ‘dumb’, ‘stupid’,

and ‘worthless’, black men would not run to white women the way they do.”

Nichols stated that “[e]veryday Teresa Stephenson would threaten Sarah Rickard’s

. . . daughter . . . that if she ever even got close to a ‘nigger man’, they did not

know what they would do.” Nichols also asserted that “[w]hen the father of

Johnson’s baby would come to [Volunteers], Teresa Stephenson, Sarah Rickard,

and Amy Johnson would yell at him that he was nothing but a ‘nigger’. Teresa

Stephenson often would start the whole thing off by calling Amy Johnson a

‘nigger lover’.” Although we have stated that “[i]t is objectively unreasonable to

believe” that an isolated use of racially offensive language can create a hostile

work environment, Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir.

2008), Nichols presented evidence that she encountered racially hostile behavior

and language at Volunteers on a daily basis. The district court erred when it

                                            8
granted summary judgment against Nichols’s claim of a hostile work environment.



      Volunteers argues that we should disregard Nichols’s statements in her

affidavit because those statements contradict her deposition testimony. Even

though a “court may determine that an affidavit is a sham when it contradicts

previous deposition testimony and the party submitting the affidavit does not give

any valid explanation for the contradiction,” we apply this rule “sparingly because

of the harsh effect it may have on a party’s case.” Latimer v. Roaring Toyz, Inc.,

601 F.3d 1224, 1237 (11th Cir. 2010) (internal quotation marks omitted). The

assertion of Volunteers that Nichols’s affidavit contradicts her deposition

testimony is conclusory. Volunteers has failed to identify any specific

contradictions between Nichols’s affidavit and her deposition testimony.

      Although Volunteers also moved for summary judgment based on the

affirmative defense recognized in Faragher v. City of Boca Raton, 524 U.S. 775,

118 S. Ct. 2275 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118

S. Ct. 2257 (1998), the district court did not address whether Volunteers was

entitled to summary judgment on that alternative ground. On remand, the district

court should address whether the affirmative defense recognized in Ellerth and

Faragher applies. We will not address this issue in the first instance.

                                          9
                B. Nichols’s Claim of Racial Discrimination Fails.

      Nichols argues that the district erred when it determined that she failed to

establish a prima facie case of racial discrimination. She asserts that she

established that the nondiscriminatory reasons produced by Volunteers to explain

her demotion were pretextual. We disagree.

      Nichols relies on circumstantial evidence to support her claim of racial

discrimination so we review that evidence based on the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Nichols

had to prove that (1) she is a member of a protected class, (2) she was qualified for

the position, (3) she suffered an adverse employment action, and (4) she was

replaced by a person outside her protected class or was treated less favorably than

a similarly-situated individual outside her protected class. Maynard v. Board of

Regents of Div. Of Univ. Dep’t of Ed., 342 F.3d 1281, 1289 (11th Cir. 2003). If a

plaintiff establishes a prima facie case of racial discrimination in employment, the

burden shifts to the employer to articulate a legitimate, nondiscriminatory reason

for its adverse actions. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1824. If

the employer articulates a legitimate, nondiscriminatory reason for its actions, “the

presumption of discrimination is rebutted, and the burden of production shifts to

                                         10
the plaintiff to offer evidence that the alleged reason of the employer is a pretext

for illegal discrimination.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087

(11th Cir. 2004). The plaintiff must meet the reason proffered head on and rebut

it. Id. at 1088. If the employer proffers more than one legitimate,

nondiscriminatory reason, the plaintiff must rebut each of the reasons to avoid

summary judgment. Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir.

2000) (en banc).

      Even if we assume that Nichols established a prima facie case of racial

discrimination, we conclude that Nichols failed to rebut the nondiscriminatory

reasons that Volunteers offered. Volunteers produced evidence that Nichols was

demoted for three nondiscriminatory reasons: according to Tucker, he demoted

Nichols because she had altered her time sheets, contacted Volunteers staff while

on administrative leave, and used a company cell phone for personal calls. The

only nondiscriminatory reason that Nichols attempts to rebut on appeal is Tucker’s

assertion that Nichols had altered her time sheets. Nichols fails to offer any

argument or evidence that Tucker’s assertions that he demoted her because she

had contacted Volunteers staff and had used a company cell phone for personal

calls were pretextual. Because Nichols must rebut each of the nondiscriminatory

reasons offered by Volunteers to survive summary judgment, she has failed to

                                          11
establish pretext. Chapman, 229 F.3d at 1037.

      Nichols attempts to circumvent her duty to rebut each of the

nondiscriminatory reasons that Volunteers offers by arguing that Stephenson was

the relevant decisionmaker, but that argument fails. Although Nichols presented

evidence that Stephenson had the power to demote employees at Volunteers,

Nichols did not produce any admissible evidence that Stephenson demoted her.

Nichols asserted that she “den[ies] that . . . Stephenson did not make the decision

to demote me and to lower my pay” and that “Stephenson took Nichols’ [house

manager II] position away from Nichols, gave it to Castle . . . and demoted

Nichols.” But these conclusory assertions are unaccompanied by supporting

evidence that Stephenson demoted Nichols. See Holifield v. Reno, 115 F.3d 1555

app. at 1564 n.6 (11th Cir. 1997). These bald assertions are insufficient to create

a genuine issue of material fact that Stephenson was the relevant decisionmaker.

Id.

      Judge Barkett’s partial dissent argues that “statements in King’s declaration

are unequivocal that Stephenson planned to get rid of Nichols because she was

black” and that “[a] reasonable jury, which credited King’s statements and not

Tucker’s, could infer from King’s statements that it was Stephenson who made the

decision to demote Nichols because of her racial animus,” Barkett, J., concurring

                                         12
in part and dissenting in part at 19, but that argument is wrong. To be sure,

Stephenson’s racially offensive statements, as repeated in King’s affidavit, are

evidence of Stephenson’s intention to fire Nichols on the basis of her race in the

future. King stated that “Stephenson told [her] that [Stephenson] was going to fire

Cassandra Renee Nichols because she is black, has a loud mouth, and she wanted

a white person, Melissa Castle, in that position.” But the record is undisputed that

Nichols was demoted, not fired, and Stephenson’s earlier statements that she

intended to fire Nichols do not create a genuine issue of material fact that

Stephenson later demoted Nichols. In other words, the record contains evidence

of Stephenson’s earlier intent to fire Nichols on the basis of race, but no evidence

that Stephenson later played a role in Nichols’s demotion.

      Two affidavits provide the only evidence of who actually decided to demote

Nichols. In his affidavit, Tucker maintained that Nichols violated Tucker’s order

not to communicate with King while she was on administrative leave. Tucker

“learned that [Nichols] was excessively using her company-issued cell phone for

personal use.” Tucker discussed this conduct with Cordia Bolden, a human

resources officer at Volunteers, and he “decided to demote . . . Nichols.” In

another affidavit, Bolden confirmed that she and Tucker discussed Nichols’s

conduct and that Tucker demoted Nichols. Neither Tucker nor Bolden said

                                         13
anything about Stepheson playing a role in Nichols’s demotion. In the light of the

undisputed evidence that Tucker demoted Nichols and the absence of any

evidence that Stephenson was involved in that decision, Stephenson’s earlier

statements that she intended to fire Nichols on the basis of race do not create a

genuine issue of material fact that Stephenson actually demoted Nichols.

      Although Nichols argued in the district court that Stephenson used Tucker

as a “cat’s paw” to discipline and demote Nichols, she abandoned this argument

on appeal. Nichols offers nothing more than passing references to this theory in

two footnotes of her briefs. See Old West Annuity and Life Ins. Co. v. Apollo

Grp., 605 F.3d 856, 860 n.1 (11th Cir. 2010) (“Although Coast mentions the lack

of supporting pleading in a footnote in its appellate brief, Coast has not presented

substantive argument on this point on appeal; the issue is therefore waived.”); see

also United States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989) (“However, by

failing to raise this issue other than by a passing reference in a footnote, White has

waived it.”).

                      C. Nichols’s Claim of Retaliation Fails.

      Nichols argues that the district court erred when it granted summary

judgment against her claim of retaliation. The district court determined that

Nichols failed to establish a prima facie case of retaliation because she did not

                                          14
produce any evidence that Tucker, as the relevant decisionmaker, knew that she

had engaged in protected activity when he demoted her. The district court also

concluded that, even if it assumed that Nichols had established a prima facie case,

Nichols failed to rebut the nondiscriminatory reasons Volunteers offered for

demoting her.

      Title VII prohibits retaliation against an employee “because [she] 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 under the retaliation provision of Title VII,

Nichols had to prove that “(1) she engaged in statutorily protected activity, (2) an

adverse employment action occurred, and (3) the adverse action was causally

related to [Nichols’s] protected activities.” Little v. United Techs., 103 F.3d 956,

959 (11th Cir. 1997). As with Nichols’s claims of discrimination, we employ the

burden-shifting analysis of McDonnell Douglas to review Nichols’s claim of

retaliation. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181–82 (11th Cir.

2010).

      Even if we assume that Nichols established a prima facie case of retaliation,

we again conclude that she failed to rebut the nondiscriminatory reasons that

                                         15
Volunteers offered to explain her demotion. Again, Nichols offers no argument or

evidence that Tucker’s assertions that he demoted her because she contacted

Volunteers staff and used a company cell phone for personal calls were pretextual.

Because Nichols must rebut each of the nondiscriminatory reasons proffered by

Volunteers, Nichols has failed to establish that Tucker’s nondiscriminatory

reasons were pretextual. Chapman, 229 F.3d at 1037.

   D. Nichols Waived Any Argument that She Was Constructively Discharged.

      Nichols argues that the district court “erred by completely ignoring

Nichols’s claims that she was constructively discharged,” and Volunteers responds

that Nichols did not fairly present this issue to the district court. Volunteers

contends that Nichols did not allege in her complaint that she had been

constructively discharged. Volunteers contends that Nichols “did nothing more

than mention the term ‘constructive discharge’ in her [summary judgment

response], without formulating any argument or otherwise providing any

supporting facts or authority as to why such a claim would have been valid.”

      Nichols waived any argument that she was constructively discharged. “An

argument not made is waived . . . .” Cont’l Technical Servs., Inc. v. Rockwell Int’l

Corp., 927 F.2d 1198, 1199 (11th Cir. 1991). “To prevail on a particular theory of

liability, a party must present that argument to the district court.” Fils v. City of

                                          16
Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011). “Our adversarial system

requires it; district courts cannot concoct or resurrect arguments neither made nor

advanced by the parties.” Id. Nichols did not allege in her complaint that she had

been constructively discharged. And Nichols neither articulated the elements of a

constructive discharge in her response to the motion for summary judgment nor

explained how any evidence in the record established that she had been

constructively discharged.

                               IV. CONCLUSION

      We affirm the summary judgment against Nichols’s claims of racial

discrimination and retaliation. We vacate the summary judgment against

Nichols’s claim of a hostile work environment. We remand for further

proceedings consistent with this opinion.

      We AFFIRM in part, VACATE in part, and REMAND for further

proceedings consistent with this opinion.




                                         17
BARKETT, Circuit Judge, concurring, in part, and dissenting, in part:

      I agree with the majority’s conclusions that Nichols did not abandon her

hostile work environment claim, that the district court properly granted summary

judgment against Nichols on her retaliation claim, and that Nichols waived any

argument that she was constructively discharged. However, I believe that Nichols

has raised a genuine dispute of a material fact on her race discrimination claim,

specifically on the question of whether Volunteers’s reasons for demoting her

were pretext, and therefore, dissent as to this claim.

      Nichols claims that Teresa Stephenson was the real decisionmaker at

Volunteers, that Victor Tucker merely rubber-stamped Stephenson’s decisions,

including the decision to demote her, and that Stephenson was motivated by racial

animus toward Nichols. In support of her argument she presented the affidavit of

her former supervisor, Sonja King, which includes King’s statements that:

      Teresa Stephenson told me that Cassandra Renee Nichols was “black
      and nasty” and she was going to get rid of “her black ass” so Melissa
      Castle, who was white, could have her job. . . . Teresa Stephenson
      told me she needed my help in getting rid of Cassandra Renee
      Nichols. Teresa Stephenson told me how she was going to maneuver
      Melissa Castle into Cassandra Renee Nichols’ job. I asked Teresa
      Stephenson why she had to fire Cassandra Renee Nichols. Teresa
      Stephenson told me that she was going to fire Cassandra Renee
      Nichols because she is black, has a loud mouth, and she wanted a
      white person, Melissa Castle, in that position.



                                          18
      Given the procedural posture of this case at summary judgment, Nichols’s

evidence is to be believed and all reasonable inferences must be drawn in her

favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Although Tucker’s

declaration states that he made an independent and unbiased decision to demote

Nichols, the statements in King’s declaration are unequivocal that Stephenson

planned to get rid of Nichols because she was black. A reasonable jury, which

credited King’s statements and not Tucker’s, could infer from King’s statements

that it was Stephenson who made the decision to demote Nichols because of her

racial animus, and therefore, the non-discriminatory reasons attested to by Tucker

were merely pretext.




                                        19
KRAVITCH, J., concurring in part and dissenting in part,

      I agree with the majority’s decision to affirm the district court’s order

granting summary judgment in favor of Volunteers on Nichols’s claims of racial

discrimination and retaliation. I also agree with the majority’s conclusion that

Nichols waived any argument that she was constructively discharged. But,

because I believe that Nichols failed to properly assert a hostile work environment

claim, I agree with the district court that Nichols waived this issue as well.

Therefore, I respectfully dissent from that portion of the majority’s opinion.

      “In opposing a motion for summary judgment, a party may not rely on his

pleadings to avoid judgment against him.” Resolution Trust Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir. 1995) (internal quotation marks omitted).

Instead, “the onus is on the parties to formulate arguments.” Id.; see also Case v.

Eslinger, 555 F.3d 1317, 1328 (11th Cir. 2009) (emphasizing that, because the

plaintiff failed to “explain why the defendants were not entitled to” summary

judgment, “he ‘cannot readily complain about the entry of a summary judgment

order that did not consider an argument [he] chose not to develop for the district

court at the time of the summary judgment motions’.” (quoting Johnson v. Bd. of

Regents, 263 F.3d 1234, 1264 (11th Cir. 2001) (alteration in original)).

      Like the plaintiff in Case, Nichols failed to develop her hostile work

                                          20
environment claim at the time of Volunteers’s summary judgment motion. In her

brief in opposition to summary judgment, Nichols never set out the elements of, or

cited any legal authority for, a hostile work environment claim. She never devoted

a section or even a paragraph to explaining the specific facts that amounted to a

hostile work environment. Instead, she only mentioned hostile work environment

in a conclusory manner - by explaining that, for example, she “reported the

racially hostile working [sic] at [Volunteers]” - or in her headings, introduction, or

conclusion, simply tacked on to enumerations of her discrimination and retaliation

claims.

       It is clear from her brief that Nichols conflated “hostile work environment”

with her discrimination and retaliation claims: Nichols set out the requisite

elements for those other two claims, which are distinct from the hostile work

environment elements,1 and developed legal argument for those claims. But she

failed entirely “to formulate arguments” about her hostile work environment

claim, as our case law requires. Resolution Trust, 43 F.3d at 599. At no point did

she link facts to law to “explain why [Volunteers was] not entitled” to the



       1
         Compare Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)
(hostile work environment elements) with McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 804 (1973) (discrimination elements) and Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1277 (11th Cir. 2008) (retaliation elements).

                                             21
judgment it sought for the reasons Volunteers explained. Because Nichols was

counseled throughout her case and, despite this, provided no legal or direct factual

support for a hostile work environment claim, I am compelled to conclude that she

did not adequately develop her claim at the summary judgment stage.

      Importantly, “[t]here is no burden upon the district court to distill every

potential argument that could be made based upon the materials before it on

summary judgment.” Resolution Trust, 43 F.3d at 599. Requiring the district

court to determine how the facts Nichols set out satisfied the elements of a hostile

work environment claim, in the absence of any argument from Nichols, would be

unduly burdensome and tantamount to obliging the district court to serve as

counsel for Nichols, which we cannot do. Cf. GJR Invs., Inc. v. Cnty. of

Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (holding that, even in the case of

a pro se litigant, the district court cannot “serve as de facto counsel for a party” or

“rewrite an otherwise deficient pleading in order to sustain an action”), overruled

in part on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709

(11th Cir. 2010). Accordingly, I would affirm the portion of the district court’s

order finding that Nichols abandoned her hostile work environment claim.




                                          22
