                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                        No. 11-10861                      JUNE 28, 2012
                                                                           JOHN LEY
                                                                            CLERK
                           D.C. Docket No. 5:08-cv-00242-HL


ADONIS B. WHITBY,

                                                            Plaintiff-Appellant,

                                            versus

SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY,

                                                            Defendant-Appellee.



                      Appeal from the United States District Court
                          for the Middle District of Georgia



                                       (June 28, 2012)

Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and RESTANI,*
Judge.


       *
          Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
RESTANI, Judge:

      In July 2008, Mr. Adonis Whitby (“Whitby”) filed a complaint against his

former employer, Janet Napolitano, Secretary of the U.S. Department of Homeland

Security (“the Government”), who is the head of Whitby’s former employing

agency, the Transportation Security Agency (“TSA”). Whitby alleged that during

his employment as a Supervisory Transportation Security Officer, the TSA

discriminated against him on multiple occasions on the basis of race, color, age,

and disability and retaliated against him for engaging in protected activity.

Whitby alleged violations of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1), the Whistleblower

Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8), the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112, and the Rehabilitation Act

of 1973, 29 U.S.C. § 791.

      On appeal, Whitby argues that the district court erred in (1) dismissing his

Title VII claims as preempted by the Aviation and Transportation Security Act

(“ATSA”), 49 U.S.C. § 44935; (2) dismissing two of his Title VII claims for

failure to exhaust administrative remedies; (3) granting summary judgment on his

Title VII discrimination and retaliation claims, and; (4) granting summary


                                          2
judgment on his Title VII hostile work environment claim.1 We affirm the district

court but, as to some claims, on its alternate grounds.

                JURISDICTION AND STANDARD OF REVIEW

       The district court had jurisdiction under 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291.

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

to state a claim, accepting all factual allegations in the complaint as true and

construing them in the light most favorable to the appellant. Am. Dental Ass’n v.

Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). We review de novo a district

court’s grant of summary judgment. Rojas v. Fla. Dep’t of Bus. & Prof’l

Regulations, 285 F.3d 1339, 1341 (11th Cir. 2002). A court shall grant summary

judgment when the evidence before it shows “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a).




       1
         Whitby does not challenge on appeal the dismissal of his ADEA, ADA, WPA, or
Rehabilitation Act claims. Whitby also does not challenge the district court’s denial of his
motion to compel or the denial of his motion for sanctions and default judgment. These issues
are deemed abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (issues not
briefed on appeal are abandoned).

                                              3
                                  DISCUSSION

I.    ATSA Preemption

      Whitby argues that the ATSA does not preempt his Title VII claims because

the ATSA does not permit the TSA to make employment decisions that

discriminate based on race, color, sex, or age. Whitby also argues that the TSA

should be bound by its voluntary commitment to comply with Title VII. On

appeal, the Government has made a litigation concession that the ATSA does not

preempt Whitby’s Title VII claims.

      Thus, for purposes of this case, we assume, based on the Government’s

litigation concession, that the ATSA does not preempt Whitby’s Title VII claims,

and we do not address the district court’s dismissal of Whitby’s Title VII claims

on preemption grounds. Rather, we affirm the district court’s grant of summary

judgment for the Government on these same claims.

II.   Failure to Exhaust Administrative Remedies

      Whitby argues the court should excuse his failure to exhaust administrative

remedies with respect to the April 2005 letter of reprimand and the September

2005 denial of overtime pay because the purpose of the exhaustion requirement

has been served and the Government has not been prejudiced. Whitby agrees he

failed to exhaust his administrative remedies for these two incidents by timely

                                         4
contacting the Equal Employment Opportunity Commission (“EEOC”), but argues

a procedural technicality should not bar his claim when the government had notice

and investigated the claims.

      In order to bring a Title VII claim, a plaintiff must exhaust his

administrative remedies. See 42 U.S.C. § 2000e-16(c); Shiver v. Chertoff, 549

F.3d 1342, 1344 (11th Cir. 2008) (“Generally, when the claimant does not initiate

contact within the 45-day charging period, the claim is barred for failure to

exhaust administrative remedies.”). An employee must initiate contact with an

EEOC Counselor within forty-five days of the discriminatory or personnel action.

29 C.F.R. § 1614.105(a)(1). The deadline may be extended if the employee was

not notified or otherwise aware of the deadline, did not know the personnel action

had occurred, or despite due diligence, was prevented from contacting the

counselor within the deadline. See id. § 1614.105(a)(2). Whitby did not make

such a request.

      Whitby’s failure to exhaust administrative remedies is not excused.

Investigation of alleged discrimination does not prevent the Government from

later asserting a failure to exhaust administrative remedies defense. Obviously,

the opposite rule would discourage agencies from fully investigating claims of

discrimination. Thus, the district court did not err in dismissing Whitby’s Title

                                          5
VII claims based on the April 2005 letter and the September 2005 denial of

overtime pay.

III.   Title VII Discrimination and Retaliation

       Whitby argues that the district court erred by granting summary judgment

on his remaining Title VII discrimination and retaliation claims. Specifically,

Whitby argues that the Government discriminated and retaliated against him based

on the following: (1) the November 2005 issuance of a letter of guidance for not

reading e-mails; (2) the November 2005 rescission of an approved overtime

request; (3) the October 2006 failure to appoint to the Bomb Appraisal Officer

position; (4) the March 2007 issuance of a letter of counseling for not reading e-

mails, and; (5) the 2007 removal of Whitby from his supervisory position and his

ultimate termination.2 Whitby’s claims lack merit.

       Title VII discrimination and retaliation claims based on circumstantial

evidence are analyzed under the burden-shifting framework of McDonnell




       2
          Whitby’s Title VII claims originally included additional instances of alleged retaliation
and discrimination: (1) the October 2005 proposed schedule change; (2) the September 2006
refusal to pay Whitby for time spent bidding on shifts, and; (3) the October 2006 delayed
reimbursement for attending a work-related class. Whitby has not briefed these claims on appeal
and, therefore, they are deemed abandoned. See Timson, 518 F.3d at 874.

                                                 6
Douglas Corp. v. Green. 411 U.S. 792, 802–03 (1973).3 If a plaintiff successfully

makes a prima facie case of discrimination or retaliation, the burden shifts to the

employer to provide a legitimate, non-discriminatory, or non-retaliatory reason for

the adverse employment action. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1264 (11th Cir. 2010). The plaintiff then bears the ultimate burden to

produce evidence showing that the employer’s reasons for the adverse action are a

pretext for discrimination or retaliation. Id. Plaintiff can demonstrate pretext by

showing that the employer’s “proffered reason was not the true reason for the

employment decision.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256

(1981). Plaintiff can show this “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is unworthy of credence.” Id.

Here, the Government has provided legitimate, non-discriminatory, and non-

retaliatory reasons for each of its actions and Whitby has failed to produce

sufficient evidence to raise a genuine issue of material fact as to whether the




       3
           The McDonnell Douglas framework applies in the same way to both discrimination and
retaliation claims based on circumstantial evidence. See, e.g., Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1263–64 (11th Cir. 2010) (applying McDonnell Douglas framework to a
discrimination claim); Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)
(applying McDonnell Douglas framework to a retaliation claim).

                                                7
proffered explanations are pretextual.4

       On November 1, 2005, Security Manager Raymond Dotson (“Dotson”)

issued Whitby an informal letter of guidance after Whitby deleted more than

twenty work e-mails without opening them. Whitby admits that he did not open

the e-mails. The Government has a clear interest in having its employees open and

read work-related e-mails.5 Whitby has presented no evidence that Dotson knew

of other employees who did not open e-mails and therefore, cannot show that

Dotson treated similarly situated employees differently. Thus, Whitby has not

proffered evidence that the Government’s reasons for issuing the letter of guidance

are pretextual.

       On November 29, 2005, Dotson rescinded approval of Whitby’s request for

overtime for working on his scheduled day off. Previously, Security Manager

Larry Lee had granted the request. The Government’s general practice is not to

grant overtime to supervisors who work on their scheduled day off unless there is

an operational need for overtime work. Whitby has failed to present evidence that



       4
          We assume, without deciding, that a genuine dispute exists as to whether Whitby can
establish a prima facie case for discrimination and retaliation and we proceed to determine
whether the Government’s proffered reasons for its actions are pretextual.
       5
          Whitby explained that he was able to read e-mails without opening them by viewing the
emails on a “split screen.” Nevertheless, Whitby provides no evidence that Dotson was aware of
this practice.

                                               8
there was an operational need for overtime work on November 29. Although

Whitby alleges that other supervisors were allowed to work overtime on days

without an operational need for overtime work, he fails to provide evidence that

there was in fact no operational need on those days. Thus, Whitby has failed to

proffer evidence that the Government’s reasons for denying him overtime are

pretextual.

      In October 2006, Whitby was not promoted to a Bomb Appraisal Officer

position. Whitby obtained a failing score in each section of the structured

interview assessment. Whitby argues that the interviews were not mandatory and

therefore cannot justify the Government’s action. Nevertheless, Whitby provides

no evidence that his failing scores were contrived in an effort to deny him the

position or that other candidates did not have to go through the same interview

process. Thus, Whitby has failed to show that the Government’s reason is

pretextual.

      On March 13, 2007, Security Manager Michael Mann issued Whitby a letter

of counseling for failure to read e-mails. Many e-mails were not received because

Whitby allowed his mailbox to become full. The Government has a clear interest

in having its employees receive and read work-related e-mails. Whitby admits that

he allowed his mailbox to become full. Thus, Whitby has failed to show that the

                                         9
Government’s reason for issuing the letter is pretextual.

      On March 29, 2007, Whitby was removed from his supervisory duties and

in December 2007 his employment was terminated. Earlier, Whitby had given all

of his screening officers the highest rating possible on their performance

evaluations. When pressed to reconsider these uniformly high evaluations,

Whitby refused. Moreover, Whitby refused to reprimand a tardy subordinate

when directed to do so by his superiors. The Government investigated this

behavior, during which time Whitby’s supervisory duties were removed. In

October 2007, the Government issued a proposed notice of termination based on

Whitby’s failure to change the evaluations, his refusal to reprimand the tardy

screening officer, and his failure to read e-mails in a timely manner. Whitby’s

position was terminated in December 2007 for these reasons. Whitby has not

proffered evidence that the Government’s reasons for his removal and termination

are pretextual.

      The Government has offered legitimate, nondiscriminatory, and non-

retaliatory reasons for each of its employment decisions. Whitby has not

demonstrated that a discriminatory reason motivated the Government nor that its

reasons are “unworthy of credence.” See Burdine, 450 U.S. at 256. We therefore

affirm the district court’s grant of summary judgment on Whitby’s Title VII

                                         10
discrimination and retaliation claims.

IV. Title VII Hostile Work Environment

      Whitby argues that the district court erred in granting summary judgment to

the Government on Whitby’s hostile work environment claim because his

supervisors directed racist and ageist comments towards him over a span of two

years. This claim lacks merit because Whitby’s allegations do not amount to

harassment that was severe or pervasive enough to alter the terms and conditions

of employment and create an abusive work environment.

       In order to establish a prima facie case for a hostile work environment

claim under Title VII, an employee must show: (1) the employee belongs to a

protected group; (2) the employee was subject to unwelcome harassment; (3) the

harassment was based on a protected characteristic of the employee; (4) the

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

employment and create a discriminatorily abusive work environment, and; (5)

there is a basis for holding the employer liable. Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); see also 42 U.S.C. § 2000e-2(a)(1).

      At a minimum, Whitby has failed to establish the fourth element, that the

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

employment and create a discriminatorily abusive work environment. To alter the

                                         11
terms of employment, the discrimination must be both objectively and subjectively

hostile. Harris v. Forklift Syss. Inc., 510 U.S. 17, 21–22 (1993). To determine

whether a work environment is objectively hostile, the court looks to the totality of

the circumstances, including the severity and pervasiveness of the acts, use of

physical threats, and whether the discriminatory acts unreasonably interfered with

the employee’s ability to perform his job. See id. at 23. Isolated incidents that are

not extremely serious are not sufficiently severe or pervasive. Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (citing Oncale v. Sundowner Offshore

Servs. Inc., 523 U.S. 75, 80 (1998)) (Title VII is not a “general civility code”).

      Whitby argues that his supervisor and manager directed racial and age

insults towards him. Whitby alleges that his manager, Dotson, remarked that

Whitby’s gray hair should be dyed. Whitby also alleges that his supervisor, Bahli

Mullins (“Mullins”), referred to Whitby periodically over the course of two years

as “Frederick Douglass” and advised Whitby to cut his hair.

      Dotson’s comment that Whitby should dye his hair was not sufficiently

severe and pervasive because it was an isolated incident. See Faragher, 524 U.S.

at 788 (explaining that an isolated comment, unless it is extremely severe, does not

constitute a discriminatory change in employment conditions). Whitby remembers

no other offensive comments made by Dotson. Mullins’ comments, when viewed

                                          12
objectively, were also not sufficiently severe to alter the terms of Whitby’s

employment. Additionally, none of the statements by Dotson or Mullins were

physically threatening.

      Moreover, the remarks by Dotson and Mullins did not unreasonably affect

Whitby’s ability to do his job and therefore, are insufficient to affect the terms of

his employment. See Harris, 510 U.S. at 21–22. Whitby states that although the

statements made him not want to work with these supervisors, the statements did

not affect his job performance in any other way. Whitby continued to do his job

for several years after the comments were made, and ultimately he was terminated

for other reasons by other superiors.

      Thus, the comments made by Dotson and Mullins do not reach the level of

severity or pervasiveness necessary to alter the terms and conditions of

employment. The district court’s grant of summary judgment on Whitby’s hostile

work environment claim is affirmed.




                                          13
                                 CONCLUSION

      For the foregoing reasons, the district court’s dismissal of the Title VII

claims based on the April 2005 letter of reprimand and September 2005 denial of

overtime for failure to exhaust administrative remedies is affirmed. The district

court’s grant of summary judgment for the Government on the Title VII

discrimination, retaliation, and hostile work environment claims is affirmed.

AFFIRMED.




                                         14
