                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                           JUNE 6, 2008
                                     No. 07-12720                        THOMAS K. KAHN
                               ________________________                      CLERK


                       D. C. Docket No. 05-02270-CV-T-26-TGW

JOHNNY JONES,
KIMBERLY SINGLETON,


                                                                       Plaintiffs-Appellants,

                                            versus

CITY OF LAKELAND,

                                                                        Defendant-Appellee.

                               ________________________

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

                                       (June 6, 2008)

Before EDMONDSON, Chief Judge, KRAVITCH and ALARCON,* Circuit
Judges.

PER CURIAM:

       *
         Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit,* sitting
by designation.
      Johnny Jones and Kimberly Singleton, both black employees, appeal the

district court’s grant of summary judgment in favor of their employer, the City of

Lakeland (“the City”), in their discrimination actions, brought pursuant to Title

VII, 42 U.S.C. § 2000e, the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10,

and 42 U.S.C. §§ 1981 and 1983. Upon review of the record and after hearing oral

argument, we affirm.

      I. Background

      Viewing the evidence in the light most favorable to Jones and Singleton as

the non-moving parties, the record established the following facts.

               a. Jones’s allegations

      Jones began working for the City in 1985 in the refuse division of public

works. He transferred to the Construction and Maintenance Division (“CM”) in

1994 after many instances of disciplinary actions resulting from tardiness and

absenteeism.2 Shortly after the transfer, Larry Carroll became department manager

in CM; Jones did not get along with Carroll, whom he believed disliked black

people. Jones alleged, and co-workers James Allen and Matt Bernal confirmed,

that the foremen and co-workers used racial slurs such as “spook,” “nigg,” and




      2
          Jones did not believe any of these difficulties were racially motivated.

                                                 2
“monkey” and made derogatory comments at morning meetings.3 Although the

slurs occurred on a daily basis, and Jones had received copies of the City’s anti-

harassment and anti-discrimination policies, Jones never filed a grievance

concerning these slurs under the City’s policy.

       Despite the transfer to the CM division, Jones continued to face disciplinary

actions. Under the city’s disciplinary policies, there was an increasing scale of

punishment, beginning with oral and written warnings and ending with

termination, depending on the type of infraction.4 In 1999, Jones received two

warnings for tardiness and was demoted. In disputing his discipline, Jones

specifically mentioned racial discrimination; he did not, however, make any

allegations of a hostile work environment.

       Jones was disciplined again in December 2000 following an altercation with

his former supervisor. In February 2001, Jones engaged in another verbal

altercation with a police officer on duty in a state building. He was disciplined for

this conduct in March 2001; Carroll attempted to discharge Jones, but the

termination was reduced to suspension following a hearing. Jones did not

       3
           Jones could not remember when the comments were made or by whom.
       4
         Group I offenses, such as tardiness, would received written warnings. Subsequent
Group I violations could receive three-days suspension or termination. Group II offenses
included abusive language to other employees. This conduct would receive suspension,
followed by termination for subsequent offenses. Group III offenses, such as insubordination
and repeated failure to adhere to policies and procedures, called for immediate termination.

                                               3
experience any disciplinary actions during the next few years.

       Jones repeatedly sought promotions to open positions, some of which he

received.5 In April 2003, Jones was promoted to Construction Tradesworker II. In

July 2003, Jones received a written reprimand for insubordination. Although his

supervisor again recommended termination, this discipline was reduced to a

written reprimand.

       On March 17, 2004, Jones filed a charge of discrimination with the EEOC

alleging discrimination and a hostile work environment. Following its

investigation, the EEOC found reasonable cause and issued a notice of right to sue.

       In 2005, Jones was moved to the position of street sweeper while another

employee was out on leave. Once the employee returned, Jones remained in the

sweeper position and did not return to his lead position. Although he was offered a

crew position, Jones declined because he viewed this as a demotion. Jones

received the same grade and pay in the sweeper position.

               b. Singleton’s Allegations

       Singleton began working for the CM division in July 1995 as a Clerk Typist

III. In 1999, she was promoted to Secretary III and Carroll became her supervisor.

Her new duties included working on annual bids, typing, filing, and entering


       5
         Jones did not assert a discrimination claim with respect to these promotion denials, as
they were time-barred.

                                                4
payroll. In 2001, Dorothy Fowler, who was white, took over the clerk typist

position. Due to a city-wide study, both Singleton and Fowler were reclassified as

Office Associate IIs.

      Singleton and Fowler did not get along; Singleton believed that Fowler

constantly reported her activities to Carroll and had Carroll assign Singleton

clerical duties that Fowler did not want to do. Singleton also alleged that Carroll

showed favoritism to Fowler, in part because Fowler was always complimenting

Carroll. Carroll did not show favoritism to the other white female in the

department, Sharon Siegel. In May 2003, Singleton applied for and received a

transfer to another department. In preparation of the transfer, Carroll began to

implement a plan to divide the Office Associate II duties to accommodate new

computer systems. When Singleton later decided not to transfer, Carroll proceeded

with the reassigned duties as planned.

      Singleton alleged that the City attempted to create a new position in 2003.

Singleton believed this new position would be a promotion, but she was denied

opportunities to train for the position. In July 2003, the problems with Fowler

came to a head in a staff meeting at which Carroll reassigned many of Fowler’s

duties, including answering the phone and sorting mail, to Singleton. Singleton

complained to Carroll about the changes. She also complained in writing to



                                          5
Employee Relations Director George Brooks that she was experiencing

discrimination as a result of the re-assignment of duties and the denial of training.

She did not allege that she experienced a hostile work environment.

      Brooks, who is black, did not believe Singleton’s treatment was

discriminatory. Based on her discussion with Brooks, Singleton amended her

complaint to exclude any mention of discrimination, although she orally informed

Carroll’s boss Rick Lilyquist of the alleged racial discrimination when she met

with him on July 18, 2003 to discuss her concerns. Although Lilyquist did not

believe there was discrimination, as there was no position available, Lilyquist

offered Singleton the training.

      Singleton alleged that she faced retaliation after her July 2003 complaint in

the following ways: (1) she again was denied training in August 2003; (2) Carroll

made comments related to the complaint; (3) Carroll treated her more harshly;

(4) her performance evaluations were lower, which Carroll explained were due to

the “confrontation;” (5) she was assigned more of Fowler’s duties, moved from her

office, and ordered to sit at the reception desk; (6) she was omitted from staff

meetings; and (7) Carroll monitored her comings and goings and required her to

keep a daily log.

      In her deposition, Singleton alleged that she heard Carroll call employee



                                           6
James Allen “possum.” Carroll stopped using the term when Allen asked him to

stop. Singleton also indicated that other employees had told her of many instances

in which Carroll made racial slurs. Singleton did not mention these comments in

any of her complaints and did not file a grievance even though she was aware of

the City’s anti-harassment and anti-discrimination policies; the first time she raised

an allegation of hostile work environment was when she filed her complaint with

the EEOC on March 18, 2004. When asked why she did not report the alleged

harassment to the Employee Relations Department, Singleton stated that “it was

not her fight.” Following its investigation of the charge, the EEOC concluded that

there was reasonable cause and issued a notice of the right to sue.

      After news of the discrimination charge filtered through the office, Singleton

alleged she faced further retaliation and discrimination in the following ways:

(1) several co-workers called Singleton a “trouble-maker;” (2) one co-worker

drafted a letter to the newspaper criticizing the allegations, and Carroll allegedly

forced Singleton to type the letter; (3) in June 2004, Carroll again changed her job

assignments to add more of Fowler’s tasks; (4) Carroll denied Singleton’s request

for a transfer in August 2004; (5) Carroll denied Singleton’s request to work

overtime on a Sunday, instead insisting that she work her overtime on Saturday;

and (6) in 2005, when Singleton requested maternity leave, Carroll made a



                                           7
comment about women giving birth in the field and returning to work the next day.

In December 2005, Singleton transferred to another department.

             c. The City’s investigation

      Brooks did not learn of the allegations until he received copies of the EEOC

charges in March 2004. As a result of the charge, the City launched an

investigation, interviewed the employees, and took remedial action. The City

instructed all employees that the racial jokes, slurs, and comments would not be

tolerated. Brooks also conducted workshops and held training sessions on

diversity.

             d. The District Court Proceedings

      Jones and Singleton filed an employment discrimination action claiming

discriminatory discipline, denials of promotions, and hostile work environment

based on these events.

      The City moved for summary judgment against both plaintiffs. On May 14,

2007, the plaintiffs filed their opposition. Three days later, the district court

granted summary judgment. Relevant to the issues on appeal, the court found that

Singleton failed to establish a prima facie case of retaliation because there was no

causal connection between the alleged acts and her complaints, but even if

Singleton established a prima facie showing, the City proffered a legitimate



                                            8
nondiscriminatory reasons for its decisions, which Singleton had not shown to be

pretextual. The court further found that Singleton failed to establish a hostile work

environment claim because although she had been told of comments by other

employees, she never complained of the comments, and the alleged comments

were neither threatening or humiliating. Nevertheless, the court concluded that the

City established an affirmative defense to liability under Faragher/Ellerth 6 because

it had an anti-discrimination policy, Singleton failed to use the policy, and the City

took remedial action when it learned of the behavior. With respect to Jones’s

allegations, the court concluded that Jones failed to establish a hostile work

environment because he could not identify who made racial slurs or when, his

vague allegations were insufficient, and the alleged comments were neither

threatening nor humiliating.7 As with Singleton’s claims, the court also found that

the City established its affirmative defense under Faragher/Ellerth. Finally, the

court determined that Jones failed to establish a prima facie case of retaliation

because there was no causal connection between his complaint and the decision to

reassign his duties.



       6
         Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662
(1998); Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998).
       7
          Although we find the comments objectionable, the district court’s conclusion is not
reversible error because Jones failed to report the slurs prior to filing his EEOC charge.

                                                9
       This appeal followed.

       II. Discussion

       Jones and Singleton initially raised discrimination and pattern or practice

claims. They do not raise those on appeal, and thus have abandoned them. Rowe

v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998). Accordingly, the only

issues before us are the hostile work environment and retaliation claims.

       We review summary judgment orders de novo, making all factual inferences

in the light most favorable to the non-moving party. Danskine v. Miami Dade Fire

Dep’t, 253 F.3d 1288, 1293 (11th Cir. 2001).

       Title VII prohibits race-based discrimination that alters the terms and

conditions of employment.8 42 U.S.C. § 2000e-2(a)(1). An employee can

establish a violation in either one of two ways: (1) through a tangible employment

action - e.g., a demotion; or (2) “through creation of a hostile work environment

caused by [] harassment that is sufficiently severe or pervasive to alter the terms

and conditions of work.” See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d

1287, 1300 (11th Cir. 2007). However, Title VII is not meant to serve as “a


       8
          The FCRA prohibits employment discrimination based on, among other things, race.
See Fla. Stat. § 760.10(i)(a). Because the FCRA is patterned after Title VII, courts routinely
apply Title VII case law to discrimination claims brought under the FCRA. Harper v.
Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). Additionally, both Title VII
and § 1981 have the same requirements of proof and present the same analytical framework.
Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).

                                               10
general civility code.” See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 81, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998).

        In order to establish a prima facie claim of a hostile work environment, a

plaintiff must establish: (1) that s/he belongs to a protected group; (2) that s/he has

been subject to unwelcome harassment;9 (3) that the harassment [was] based on a

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 such environment under either a theory of vicarious or of direct

liability.10 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.

2002)

        Under the fourth prong-whether the harassing conduct was sufficiently

severe or pervasive to alter the terms and conditions of employment-the employee

must personally perceive the harassment as severe and pervasive, and the

environment must be one that a reasonable person in the employee’s position

would find hostile or abusive. Hulsey v. Pride Rest., LLC, 367 F.3d 1238, 1247

        9
           The court may consider racial slurs not directed at the plaintiff or not made in the
plaintiff’s presence as evidence of a hostile environment. See Busby v. City of Orlando, 931
F.2d 764, 785 (11th Cir. 1991).
        10
           Contrary to the City’s argument, we may consider incidents occurring outside the
statutory time-frame because the very nature of the claim is one of repeated and pervasive
conduct. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-117 (2002).

                                                11
(11th Cir. 2004). The following four factors are important in analyzing whether

harassment objectively altered an employee’s terms or conditions of employment:

“(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the

conduct was physically threatening and humiliating or just a mere utterance; and

(4) whether the conduct unreasonably interferes with the employee’s work

performance.” Id. at 1247-48. Additionally, we consider the alleged conduct in

context and cumulatively, looking at the totality of the circumstances, to determine

if an environment is hostile. See id. at 1248. Teasing, offhand comments, and

isolated incidents do not constitute discriminatory changes in the terms and

conditions of employment. Faragher v. City of Boca Raton, 524 U .S. 775, 788,

118 S.Ct. 2275, 2284, 141 L.Ed.2d 662 (1998).

      Under the fifth prong, “[a]n employer is subject to vicarious liability to a

victimized employee for an actionable hostile environment created by a supervisor

with immediate ... authority over the employee.” Ellerth, 524 U.S. at 765. If the

harassing supervisor takes a tangible employment action against the victimized

employee, the employer will be vicariously liable to the employee without the

benefit of a legal defense. Id. at 762-63; see also Frederick v. Sprint/United Mgmt.

Co., 246 F.3d 1305, 1311 (11th Cir. 2001). Where the employee does not suffer a

tangible employment action, the employer may avoid liability by showing 1) it



                                          12
“exercised reasonable care to prevent and correct promptly any [] harassing

behavior”; and 2) the employee “unreasonably failed to take advantage of any

preventative or corrective opportunities [it] provided.” Faragher, 524 U.S. at 807;

Ellerth, 524 U.S. at 765. See also Nurse “BE” v. Columbia Palms West Hosp. Ltd.

Partnership, 490 F.3d 1302, 1309 (11th Cir. 2007). As an affirmative defense, the

defendant bears the burden of establishing both of these elements. See id. “[O]nce

a company has developed and promulgated an effective and comprehensive

anti-sexual harassment policy, aggressively and thoroughly disseminated the

information and procedures contained in the policy to its staff, and demonstrated a

commitment to adhering to this policy, it has fulfilled its obligation to make

reasonably diligent efforts to ‘know what is going on’ within the company.”

Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997).

      Title VII and the FCRA also include a separate anti-retaliation provision

prohibiting employers from retaliating against an employee “because he has

opposed any practice made an unlawful employment practice” by Title VII. See 42

U.S.C. § 2000e-3(a); Fla. Stat. § 760.10(7). “[A]n employee need not prove the

underlying claim of discrimination for the retaliation claim to succeed.” Sullivan

v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999).

      To establish a prima facie case of retaliation, a plaintiff must prove that



                                          13
(1) s/he participated in a protected activity; (2) s/he suffered a materially adverse

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

participation in the protected activity and the adverse employment decision.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165

L.Ed.2d 345 (2006); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978

n.52 (11th Cir. 2008). The phrase ‘protected activity’ includes formal EEOC

complaints and informal complaints filed internally to the employee’s supervisors.

Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 n.2 (11th Cir. 2002).

      This court construes “the causal link element broadly so that ‘a plaintiff

merely has to prove that the protected activity and the ... [adverse] action are not

completely unrelated.’” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)

(modifications in original) (citation omitted). Furthermore, a causal connection is

established if the plaintiff shows that the decision-maker was aware of the

protected activity and the protected activity is not wholly unrelated to the adverse

action. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000). “For

purposes of a prima facie case, ‘close temporal proximity’ may be sufficient to

show that the protected activity and the adverse action were not ‘wholly

unrelated.’” Id.

      This court has held that a three month period between the protected activity



                                           14
and adverse action “does not allow a reasonable inference of a causal relation

between the protected expression and the adverse action.” Higdon, 393 F.3d at

1221.

        If the plaintiff establishes a prima facie case, the burden shifts to the

employer to proffer a legitimate, non-discriminatory reason for the adverse action.

Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007). If the

employer meets this burden, then the plaintiff must show that the employer’s

proffered reason is mere pretext for retaliation by presenting sufficient evidence

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

employer were not the real reasons for the adverse employment decision.” Combs

v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Conclusory

allegations, without more, are insufficient to show pretext. Mayfield v. Patterson

Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). Instead, the plaintiff must meet

the proffered reason “head on and rebut it.” Chapman v. AI Transport, 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc).

        After a thorough review of the record and upon hearing oral argument, we

conclude that there was no error in the district court’s order granting summary

judgment. With respect to the hostile work environment claims, although Jones

and Singleton were aware of the City’s anti-discrimination and anti-harassment



                                             15
policies prior to their EEOC complaints, neither filed grievances alleging a hostile

environment, and this failure is fatal to those claims. Moreover, once the City

learned of the allegations following the EEOC charge, the City investigated and

took prompt remedial action. Finally, Jones’s and Singleton’s alleged instances of

retaliation are either too far removed from any complaint to establish a causal

connection, or are justified by legitimate, non-retaliatory reasons, which the

plaintiffs failed to show were pretextual. Accordingly, we AFFIRM.




                                          16
