                   Case: 12-14711          Date Filed: 04/25/2013   Page: 1 of 14


                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                            No. 12-14711
                                        Non-Argument Calendar
                                      ________________________

                             D.C. Docket No. 4:11-cv-00466-RH-CAS

BYRON UNDERWOOD,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellant,

                                                 versus

DEPARTMENT OF FINANCIAL
SERVICES STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellee.
                                       ________________________

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

                                            (April 25, 2013)

Before CARNES, BARKETT, and FAY, Circuit Judges.

PER CURIAM:

         Byron Underwood appeals the district court’s grant of summary judgment in

favor of the Florida Department of Financial Services (“DFS”), his former

employer, in his counseled employment action, alleging retaliation pursuant to
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Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3; 42

U.S.C. § 1981(a); and the Florida Civil Rights Act (“FCRA”), Fla. Stat.

§ 760.10(7). On appeal, Underwood argues that the plain language of Title VII

and the Supreme Court’s decision in Thompson v. N. Am. Stainless, LP, 562 U.S.

___, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011), permit him to file a retaliation claim

against the DFS for firing him because his wife had filed a discrimination charge

against a different employer. For the reasons set forth below, we affirm the district

court’s grant of summary judgment to the DFS.

                                         I.

      In 2011, Underwood filed an amended complaint against the DFS, his

former employer, alleging violations of Title VII, 42 U.S.C. § 1981, and the

FCRA. Specifically, he alleged that he worked for the DFS from December 23,

2009, until his termination on March 15, 2010. Before his employment with the

DFS, Underwood worked for the Florida Department of Health (“DOH”) for

approximately 14 years. During his employment with the DFS, Underwood’s

wife, Linda Underwood (“Linda”), had filed a “gender, age[,] and retaliation

action” against the DOH, where she had also been employed. Approximately one

month before Underwood’s termination from the DFS, Linda resolved her

discrimination case.




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      Further, the complaint alleged that Dell Harris, a DFS employee, acted on

behalf of the DFS’s Division of Risk Management in connection with the

mediation and resolution of Linda’s employment complaint against the DOH, and

he had knowledge of Underwood’s relationship with Linda. Additionally, Eric

Whitehead, who Underwood reported to during his employment with the DFS, had

previously worked for the DOH and had direct knowledge of Linda’s complaint.

At the DFS, Whitehead was supervised by Ross Nobles, who controlled the state

funds that were ultimately used to resolve Linda’s complaint. Additionally, Nobles

was supervised by Linda Keen and, like Whitehead, Keen had been employed with

the DOH while Linda’s discrimination claims were pending. Keen terminated

Underwood shortly after Linda’s claims against the DOH were resolved and, when

Underwood asked Keen for an explanation, she responded that Underwood was

“no longer a good fit.” Underwood asserted that “Harris, Whitehead, Nobles

and/or Keen caused [his] termination after [Linda’s] claims against [the] DOH

were resolved.” Further, he was terminated in retaliation for his affiliation with his

wife and for “her participation in a protected activity.” In sum, Underwood

asserted that these facts supported a cause of action for unlawful retaliation against

the DFS. Further, Underwood is a member of a protected class due to his

affiliation with his wife, who engaged in a protected activity, and “because he was

the victim of retaliation thereafter.”


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      The DFS filed a motion for summary judgment, arguing that Underwood’s

retaliation claim attempted to “impermissibly expand” the scope of Title VII’s anti-

retaliation provision and the Supreme Court’s recent decision in Thompson.

According to the DFS, Thompson held that an employee could bring a third party

retaliation claim under Title VII on the basis of harm that he suffered in retaliation

for a protected activity in which his co-worker, with whom he had a close personal

relationship, had engaged. Here, however, Underwood and Linda, his spouse,

were not co-workers but, rather, they were employed by two different employers,

the DFS and the DOH. Thus, even assuming that Underwood’s allegations were

true, the DFS was entitled to summary judgment because (1) the DFS did not

engage in an unlawful employment practice by firing Underwood; and (2) even if it

did, Underwood lacks standing to maintain this action.

      In response, Underwood argued that, under Thompson, the DFS can be liable

for the adverse action that he suffered because he fell within “zone of interests”

that Title VII is intended to protect based on his wife’s protected activity.

Similarly to the plaintiff in Thompson, Underwood was an intended target of the

DFS’s actions. Under the “broad sweep” of Burlington Northern & Santa Fe Ry,

Co.. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) and

Thompson, Underwood, as the husband of a party who complained of

discrimination, is “a person aggrieved” with standing to bring a retaliation claim.


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Contrary to the DFS’s argument, Thompson does not require a showing that “an

employee of the defendant has engaged in protected activity.” Instead, Title VII’s

anti-retaliation provision prohibits any employer action that “well might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Thus, third-party reprisals, like Underwood’s termination based

on his wife’s conduct, are explicitly recognized in Thompson.

      The district court granted the DFS’s motion for summary judgment. The

court noted that the case presented two issues: (1) whether the DOH and the DFS,

two state agencies, are properly treated as the same employer for purposes of Title

VII’s anti-retaliation provision; and (2) if not, whether the anti-retaliation provision

prohibits an employer from taking action against an employee because the

employee’s spouse—who did not work for the same employer—made a charge of

discrimination against a “different employer.” For summary judgment purposes,

the court credited Underwood’s allegation that the DFS fired him because his wife,

Linda, had asserted a discrimination charge against the DOH. As to the first issue,

the court found that Florida law treats the DFS and the DOH as separate agencies,

each with its own workforce and employees, and each with the capacity to be sued.

Further, partly for this reason, the law of this Circuit treats these state agencies as

separate employers for Title VII purposes. Specifically, this Court has adopted a

presumption “that governmental subdivisions denominated as separate and distinct


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under state law should not be aggregated for purposes of Title VII.” This

presumption may only be rebutted by evidence that a governmental entity was

structured for the purpose of evading federal employment law. Here, the DFS and

the DOH are “large, wholly separate agencies that could properly be treated as one

only if the law required all state agencies to be treated as one,” and there is no such

requirement. Thus, the DFS and the DOH were separate employers.

      As to the second issue, the court found that the analysis of whether Title VII

applies in these circumstances “begins and ends with the statutory language.”

Although a review of the statutory text favored the plaintiff in Thompson, it

produces a different outcome in this case. In Thompson, the employer retaliated

against one of its own employees—Thompson’s fiancée—based on her charge of

discrimination. However, in this case, the DFS did not employ the person who

asserted the charge of discrimination and, although the DFS employed Underwood,

he had asserted no charge of discrimination. Further, the court stated,

      [T]here is simply no way to bring this case within the anti-retaliation
      provision’s text[]. The text makes it an ‘unlawful employment
      practice’ for an employer to discriminate against any of ‘his’—the
      employer’s own—employees, because ‘he’—the employee—has
      complained of discrimination. Firing an employee’s fiancé or spouse
      can be retaliation against the employee, as Thompson makes clear. A
      plaintiff whose fiancé or spouse suffers retaliation can be a ‘person
      aggrieved,’ as Thompson makes clear. But unless the plaintiff’s own
      employer has committed an ‘unlawful employment practice,’ the
      plaintiff has no claim under the Title VII anti-retaliation provision. In
      Thompson[,] the plaintiff’s own employer had committed an ‘unlawful
      employment practice.’ Here, the plaintiff’s employer did not.
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Thus, the DFS was entitled to summary judgment.

      While the court stated that its conclusion did not mean that an employer

“should take an action against an employee because a relative asserted a

discrimination charge against an employer,” it noted that “Title VII does not reach

all evils in employment.” In granting summary judgment, the court stated it that it

had followed the instruction of Thompson and other cases, that courts should apply

the “clear statutory text.” For these reasons, the district court granted summary

judgment to the DFS.

                                          II.

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

the same legal standards as the district court.” Chapman v. AI Transport, 229 F.3d

1012, 1023 (11th Cir. 2000) (en banc). “[S]ummary judgment is appropriate if the

evidence before the court shows that there is no genuine issue as to any material

fact.” Id. (quotation omitted). “A genuine issue of material fact does not exist

unless there is sufficient evidence favoring the nonmoving party for a reasonable

jury to return a verdict in its favor.” Id. (quotation omitted). In making this

determination, we “make all reasonable inferences in favor of the” nonmoving

party. Id. (quotation omitted).

      Title VII provides that “[i]t shall be an unlawful employment practice for an

employer to discriminate against any of his employees. . . because he has opposed
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any practice made an unlawful employment practice by [Title VII], or because he

has made a charge” under Title VII. 42 U.S.C. § 2000e–3(a); see Thompson, 562

U.S. at ___, 131 S.Ct. at 867. The Supreme Court has interpreted Title VII’s anti-

retaliation provision to provide broad protection from retaliation. Burlington

Northern, 548 U.S. at 67, 126 S.Ct. at 2414. To establish a prima facie case of

retaliation, a plaintiff may show that he engaged in protected activity, he suffered a

materially adverse action, and a causal connection existed between the activity and

the adverse action. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 856

(11th Cir. 2010).

      As both parties rely heavily on Thompson, a discussion of the facts and

circumstances of that case is helpful in resolving the instant appeal. In Thompson,

the plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, were both

employees of North American Stainless (“NAS”). Thompson, 562 U.S. at __, 131

S.Ct. at 867. In February 2003, the EEOC notified NAS that Regalado had filed a

discrimination charge and, three weeks later, NAS fired Thompson. Id.

Subsequently, Thompson sued NAS under Title VII, claiming that it had fired him

in order to retaliate against Regalado for filing her EEOC charge. Id. The district

court granted summary judgment to NAS, finding that Title VII did not permit

third party retaliation claims. Id. The Supreme Court disagreed, holding that

Thompson could maintain a cause of action under Title VII. Id. at __, 131 S.Ct. at


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867-70. Under the procedural posture of the case, the Court was required to

assume that NAS fired Thompson in retaliation against Regalado for filing a

discrimination charge. Id. at __, 131 S.Ct. at 867. The Court explained that the

case presented two questions: (1) whether NAS’s firing of Thompson constituted

unlawful retaliation; and (2) if so, whether Title VII grants Thompson a cause of

action. Id.

      As to the first issue, the Court, relying on Burlington, explained that Title

VII’s anti-retaliation provision, in contrast to its substantive provision, must be

construed to cover a broad range of employer conduct. Id. at __, 131 S.Ct. at 867-

68. Further, the Court concluded that NAS’s firing of Thompson violated Title

VII. Specifically, the Court explained that Title VII’s anti-retaliation provision

prohibits any employer action that “well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Id. at __, 131 S.Ct. at 868.

The Court concluded that it was “obvious that a reasonable worker might be

dissuaded from engaging in protected activity if she knew that her fiancé would be

fired.” Id. Moreover, the Court concluded that there was no textual basis for

making an exception to that provision for third-party reprisals. Id. The Court also

declined to identify a “fixed class of relationships for which third-party reprisals

are unlawful.” Id. Specifically, the Court stated that the “firing of a close family




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member will almost always meet the Burlington standard, and inflicting a milder

reprisal on a mere acquaintance will almost never do so.” Id.

      Next, the Court addressed whether Thompson had standing to sue NAS for

its alleged Title VII violation. Id. at __, 131 S.Ct. at 869. In holding that

Thompson had standing, the Court concluded that Title VII incorporates the “zone

of interests” test, which denies a right of review ‘if the plaintiff’s interests are so

marginally related to or inconsistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to permit the suit.’” Id. at

___, 131 S.Ct. at 869-70. Ultimately, the Court concluded that Thompson fell

within the zone of interests protected by Title VII, i.e., he was a person aggrieved

with standing to sue because (1) he was an employee of NAS, and the purpose of

Title VII is to protect employees from their employers’ actions, and (2) he was not

an accidental victim of the retaliation, as “injuring him was the employer’s

intended means of harming Regalado.” Id. at ___, 131 S.Ct. at 870. Specifically,

“[h]urting [Thompson] was the unlawful act by which the employer punished

[Regalado].” Id.

      As an initial matter, Underwood asserts that, under Thompson, he has

standing to sue the DFS because, as Linda’s husband, he is within the “zone of

interests” sought to be protected under Title VII. However, in granting summary

judgment to the DFS, the district court did not reach the issue of whether


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Underwood had standing to sue because it concluded that, unlike the plaintiff in

Thompson, Underwood could not show that the DFS had engaged in an “unlawful

employment action.” For the reasons discussed below, the district court’s

conclusion was correct, and we need not reach the issue of whether Underwood

has standing to bring a retaliation claim.

      Additionally, before addressing whether the DFS had engaged in an

unlawful employment action, the district court found that, for purposes of Title

VII, the DFS and the DOH were separate employers. On appeal, Underwood

discusses the relationship between the DFS and the DOH, but he argues that such a

“link” or “special relationship” is not required for his retaliation claim to proceed.

Instead, he asserts that the relationship between the two employers is relevant to

whether he has demonstrated the causal connection prong of his prima facie case.

Regardless, Underwood does not explicitly argue that the DFS and the DOH

should be considered to be the same employer for purposes of analyzing his

retaliation claim. Moreover, he does not argue that the district court erred in

finding that the DFS and the DOH, as different state agencies, are different

employers under Title VII. Thus, to the extent that Underwood raised this

argument below, he has abandoned it on appeal, and we will not consider it. See

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir.




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2009) (explaining that an appellant abandons a claim or argument that is not

briefed on appeal and we will not address it on the merits).

      The district court did not err in granting summary judgment to the DFS. On

appeal, Underwood asserts that the district court erred in finding that the retaliating

employer must be the same as the employer that engaged in the underlying

discriminatory conduct. However, the district court did not reject his retaliation

claim only because the retaliating employer (the DFS) was not the same as the

employer that Linda filed her discrimination charge against (the DOH). Instead,

the district court’s found that Title VII’s anti-retaliation provision did not apply

because the DFS did not retaliate against one of its own employees based on that

employee’s protected conduct. Contrary to Underwood’s arguments, Thompson is

distinguishable from the instant case. In Thompson, the plaintiff (Thompson)

alleged that NAS fired him in retaliation against his fiancée (Regalado), who was

his coworker and who had engaged in a protected act by filing a discrimination

charge against NAS. See Thompson, 562 U.S. at ___, 131 S.Ct. at 867. Thus, the

third party retaliation claim was that NAS, the employer, retaliated against its own

employee—the fiancée—based on her protected act and that NAS did so by firing

another employee—the plaintiff—with whom she had a close personal

relationship. See id. Here, Underwood has not asserted such a third party

retaliation claim because he asserts that his employer, the DFS, retaliated against


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him, not his wife, and he concedes that he did not engage in protected conduct. In

other words, unlike in Thompson, Underwood did not allege that the defendant

employer (the DFS) fired him as a means of harming or retaliating against Linda,

the individual who engaged in protected conduct. See Thompson, 562 U.S. at ___,

131 S.Ct. at 867-70.

      Although Title VII’s retaliation clause covers a broad range of employer

conduct, the plain language of § 2000e-3 requires that the retaliatory action must

be against an employee who engaged in protected conduct. See 42 U.S.C.

§ 2000e-3(a). Under Thompson, an employer can retaliate against such an

employee by firing someone with whom the employee has a close personal

relationship. See Thompson, 562 U.S. at ___, 131 S.Ct. at 867-68. However, as

discussed above, Underwood did not allege that his employer (the DFS) retaliated

against the same employee who filed the underlying discrimination charge (Linda).

Presumably, Underwood could not have asserted such a claim because Linda was

not a DFS employee. Regardless, Underwood has not identified, and research does

not reveal, any binding authority suggesting that, under Title VII, an employer can

unlawfully retaliate against one of its own employees, who did not engage in

protected conduct, because that employee’s spouse, who was a non-employee, filed

a discrimination charge against a different employer.

      For the foregoing reasons, we affirm the grant of summary judgment.


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AFFIRMED.




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