         Case: 11-13524   Date Filed: 02/22/2013   Page: 1 of 11

                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 11-13524
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:08-cv-01682-PWG



MICHAEL DEWAYNE HILL,


                                                         Plaintiff - Appellant,


                                versus



WAL-MART STORES, INC.,


                                                       Defendant - Appellee.

                     ________________________

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

                          (February 22, 2013)
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Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Michael Dewayne Hill, proceeding pro se, sued his former employer, Wal-

Mart Stores, Inc., asserting several causes of action, including claims for a hostile

work environment and retaliation under Title VII of the Civil Rights Act. The

parties consented to jurisdiction by a magistrate judge, who granted Wal-Mart’s

motion for summary judgment on Hill’s retaliation claim, but denied summary

judgment on Hill’s hostile work environment claim. The case proceeded to a

bench trial. Although the magistrate judge found that Hill suffered discomfort and

anxiety at work, he concluded that Hill failed to satisfy his burden of proof and

was “not the victim of actionable conduct on the part of his employer.” A

judgment was entered in favor of Wal-Mart.

      Hill raises four central issues on appeal. He argues that the district court

erred by 1) failing to inform him that he had to request a jury trial; 2) failing to tell

him which claims he should file; 3) granting summary judgment to Wal-Mart

based only on his deposition and the false declarations of accused Wal-Mart

employees; and 4) granting judgment to Wal-Mart when the witnesses contradicted

each other. We consider each of Hill’s arguments in turn.

                                         I.




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       First, Hill asserts that the district court erred by neglecting to tell him that

he had to request a jury trial. Hill argues that he did not request a jury trial

because, as a pro se litigant, he was not aware of the Federal Rules of Civil

Procedure.

      “The Constitution guarantees to litigants in the federal courts the right to

have their case tried by a jury, and Rule 38 of the Rules of Civil Procedure

explicitly implements that guarantee.” City of Morgantown, W. Va. v. Royal Ins.

Co., 337 U.S. 254, 258, 69 S. Ct. 1067, 1069 (1949). But, Rule 38(d) also provides

that “[a] party waives a jury trial unless its demand is properly served and filed.”

Fed. R. Civ. P. 38(d).

      “Interpretation of the Federal Rules of Civil Procedure presents a question of

law subject to de novo review . . . .” Mega Life and Health Ins. Co. v. Pieniozek,

585 F.3d 1399, 1403 (11th Cir. 2009). The “denial of a jury trial is reviewed with

the most exacting scrutiny” and “this Court indulge[s] every reasonable

presumption against waiver.” Id. (quotation marks omitted). This Court also

liberally construes pro se briefs and pleadings. Douglas v. Yates, 535 F.3d 1316,

1320 (11th Cir. 2008). However, Hill points to no pleading that we might liberally

interpret as a request for a jury trial. Instead he suggests that the requirement in

Rule 38 should not apply to him because he was not made aware of it. Pro se

litigants remain “subject to the relevant law and rules of court, including the


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Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th

Cir. 1989). This being the case, under Rule 38, Hill waived his right to a jury trial

when he failed to make a proper demand. See LaMarca v. Turner, 995 F.2d 1526,

1545 (11th Cir. 1993) (explaining that a party waives the right to a jury trial “by

failing to make a timely demand upon the courts”).

                                        II.

      Second, Hill contends that the district court erred when it did not tell him

which claims he could bring. Specifically, Hill stresses that he enumerated twenty-

four claims in his original complaint. He argues that the magistrate judge should

have told him which claims he could bring, instead of just informing him of the

problems with his complaint.

      Following Wal-Mart’s motion to dismiss, or motion for a more definite

statement, the magistrate judge issued a seven-page order instructing Hill on how

to plead a claim. This order explained the purpose and requirements of a

complaint; described in detail the problem with “shotgun” pleadings; “urged [Hill]

to review Rule 8, Rule 10 and Rule 11 of the Federal Rules of Civil Procedure”;

and ordered Hill to file an amended complaint in conformity with the Federal

Rules of Civil Procedure. The magistrate judge then suggested that Hill “seriously

consider presenting only such claims as literally ‘the law will allow.’” In view of

the explanations given to Hill by the magistrate judge, and noting our


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admonishment that a pro se litigant’s “lack of legal expertise is not a basis for

reversal,” United States v. LaChance, 817 F.2d 1491, 1499 (11th Cir. 1987), we

conclude that the district court did not err by failing to advise Hill on which claims

to bring.

                                        III.

      Third, Hill argues that the district court erred in granting partial summary

judgment based on contradictory and incomplete evidence presented by Wal-Mart.

Specifically, he says that the district court did not consider “the additional

evidence and witness testimony that hadn’t yet been presented,” and that the

district court accepted as true the false statements made by Wal-Mart employees,

who were motivated to hide the truth.

      We review the district court’s granting of a summary judgment motion de

novo, applying the same legal standard as the district court. Bochese v. Town of

Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). A moving party is entitled to

summary judgment “if [it] shows that there is no genuine dispute as to any material

fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We

consider the facts and reasonable inferences in the light most favorable to the non-

moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009).

      We interpret Hill’s assertion of incomplete, false, and inconsistent evidence

as an argument that factual issues were in dispute about whether Hill was subject


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to retaliation under Title VII. See Douglas v. Yates, 535 F.3d at 1320 (explaining

that we liberally interpret pleadings from a pro se litigant). We agree with the

district court that Wal-Mart was entitled to judgment as a matter of law on Hill’s

retaliation claim. 1 To establish a claim of retaliation under Title VII, a plaintiff

must show that 1) he engaged in statutorily protected activity; 2) he suffered a

materially adverse action; and 3) there was a causal link between the protected

activity and the adverse action. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209,

1212–13 (11th Cir. 2008). If a plaintiff-employee makes out a prima facie case of

retaliation, and the employer articulates a legitimate, non-discriminatory reason for

the action, the plaintiff must show, by a preponderance of the evidence, that the

employer’s reason is pretextual. Lipphardt v. Durango Steakhouse of Brandon,

Inc., 267 F.3d 1183, 1187 (11th Cir. 2001).

       Even assuming that Hill made a prima facie case of retaliation, he has not

rebutted the legitimate reasons offered by Wal-Mart for his discipline and

termination. Specifically, Wal-Mart alleges, and Hill concedes, that he was

disciplined for failing to finish his work in the dairy department; clocking-out

early; clocking excessive overtime; and failing to clean the cooler. Hill was told if

he was disciplined again within twelve months, he would be terminated. Hill was
1
 We also agree with the district court’s conclusion that Hill was precluded from raising his race
discrimination claim because he did not include this claim in his amended complaint. Because
an amended complaint supersedes the original complaint, claims that were omitted from the
amended complaint are not properly before the district court. Pintando v. Miami-Dade Housing
Agency, 501 F.3d 1241, 1243 (11th Cir. 2007).
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then terminated after using “severe profanity” in front of a customer. The store

manager who fired Hill said that he was not aware of the allegedly hostile

condition of Hill’s work environment. Hill did not rebut Wal-Mart’s reasons for

his termination or discipline by showing by a preponderance of the evidence that

Wal-Mart’s reason was pretextual.2 Based on this record, the district court

properly granted summary judgment in Wal-Mart’s favor on Hill’s retaliation

claim.

                                             IV.

         Fourth, Hill argues that the district court erred by granting judgment in favor

of Wal-Mart on his hostile work environment claim following the bench trial. “On

appeal of a district court order from a bench trial, we review the court’s

conclusions of law de novo and its findings of fact for clear error.” HGI Assocs.,

Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005). The clear error

standard of review is highly deferential. “A factual finding is clearly erroneous


2
  In his response to Wal-Mart’s summary judgment motion, Hill stated that he “will present
evidence that demonstrates that a retaliatory reason is what motivated Wal-Mart to terminate his
employment.” However, he never provided that evidence during the district court’s
consideration of Wal-Mart’s summary judgment motion. Indeed, Hill argues that the magistrate
judge prematurely granted summary judgment without considering evidence that Hill had not yet
presented. As the moving party, Wal-Mart had the initial burden of establishing that there were
no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 2553 (1986). The burden then shifted to Hill to “rebut that showing by producing
affidavits or other relevant and admissible evidence beyond the pleadings.” Jones v. UPS
Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation marks omitted). Because Hill
had the burden of producing evidence after Wal-Mart’s initial showing, the district court did not
err when it granted partial summary judgment without considering evidence that Hill had not
presented.
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when although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been

committed.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317,

1319 (11th Cir. 2007) (quotation marks omitted). Under this standard, “[i]f the

district court’s account of the evidence is plausible in light of the record viewed in

its entirety, the court of appeals may not reverse it even though convinced that had

it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. (quotation marks omitted).

      First, Hill contests the district court’s factual findings by asserting that ten

witnesses contradicted themselves. His argument is essentially a “summa[tion of]

the many false statements and actions made by Wal-Mart during this action.”

However, assessing the credibility of a witness is in the province of the factfinder.

We ordinarily do not review a factfinder’s determination of credibility. Crystal

Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011).

Because we “must give due regard to the trial court’s opportunity to judge the

witnesses’ credibility,” Fed. R. Civ. P. 52(a)(6), we will not second-guess the

district court’s determinations of the witnesses’ credibility under clear error

review.

      Second, Hill seems to argue that the district court’s legal conclusions were

erroneous. As for the hostile work environment claim, Hill argues that the conduct


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in his case was “more frequent, voluminous, and explicit” than our circuit

precedent requires. To prove a hostile work environment, Hill must show that 1)

he belonged to a protected group; 2) he was subject to unwelcome sexual

harassment; 3) the harassment was based on his sex; 4) “the harassment was

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

and create a discriminatorily abusive working environment”; and 5) there is a basis

for holding Wal-Mart liable. See Reeves v. C.H. Robinson Worldwide, Inc., 594

F.3d 798, 808 (11th Cir. 2010) (quotation marks omitted).

      “When, as in this case, the alleged harassment is committed by co-workers

or customers, a Title VII plaintiff must show that the employer either knew (actual

notice) or should have known (constructive notice) of the harassment and failed to

take immediate and appropriate corrective action.” Watson v. Blue Circle, Inc.,

324 F.3d 1252, 1259 (11th Cir. 2003). “Actual notice is established by proof that

management knew of the harassment.” Id. The district court found that Wal-Mart

did not have actual knowledge that Hill complained of his co-workers’ conduct.

Although Hill testified that three of his supervisors knew that he complained of his

co-workers’ behavior, these three supervisors testified that they were not aware

that Hill complained of sexual harassment. We need not resolve this factual

dispute, however, because the supervisors’ testimony is evidence to support the

district court’s finding that Wal-Mart did not have actual knowledge of Hill’s


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alleged harassment, and we review that finding for clear error. See HGI Assocs.,

Inc., 427 F.3d at 873.

       The district court also determined that Hill failed to show that Wal-Mart had

constructive knowledge of Hill’s alleged harassment. “The question of

constructive knowledge is an issue of fact reviewed for clear error.” Farley v. Am.

Cast Iron Pipe Co., 115 F.3d 1548, 1553 (11th Cir. 1997). The district court’s

finding is plausible in light of the fact that Wal-Mart had a well-advertised sexual

harassment policy, which allowed associates to bring complaints to management.

When a company has developed and disseminated such a policy, “it has fulfilled its

obligation to make reasonably diligent efforts to ‘know what is going on’ within

the company” and “the existence of [such a] policy precludes a finding of

constructive knowledge.” Id. at 1153–54. Thus, we affirm the district court’s

finding that Wal-Mart did not know of the harassment alleged by Hill. The district

court did not err in granting judgment in favor of Wal-Mart.3

                                                   V.

       For these reasons, we affirm the decisions of the district court.


3
 Hill also argues that the district court erred by changing the defendant from “Wal-Mart Stores,
Inc. to Wal-Mart Stores East, L.P.” when members of senior management worked for Wal-Mart
Stores, Inc. Even assuming such an error, it was harmless because Hill has not shown that his
employer, whether Wal-Mart Stores, Inc. or Wal-Mart Stores East, L.P., engaged in actionable
conduct. As Hill acknowledges, the name change does not impact his substantive rights. “We
will not reverse if an error of the district court is harmless, and the standard for harmless error is
whether the complaining party’s substantive rights were affected.” Goldsmith v. Bagby Elevator
Co., Inc., 513 F.3d 1261, 1276 (11th Cir. 2008).
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AFFIRMED.




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