                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                FILED
                                                       U.S. COURT OF APPEALS
                              No. 09-11755               ELEVENTH CIRCUIT
                                                          DECEMBER 1, 2009
                          Non-Argument Calendar
                                                          THOMAS K. KAHN
                        ________________________
                                                               CLERK

                    D. C. Docket No. 07-01456-CV-TWT-1

CRYSTAL HYDE,


                                                           Plaintiff-Appellant,

                                  versus

K. B. HOME, INC.,

                                                                   Defendant,

DANIEL J. WAIBEL,
KB HOME,


                                                        Defendants-Appellees.


                        ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (December 1, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Crystal Hyde appeals the grant of summary judgment on her claims of

gender and pregnancy discrimination, harassment, and retaliation under Title VII,

42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) (“Title VII”), and the Pregnancy

Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); for retaliation under the

Family Medical Leave Act, 29 U.S.C. § 2615 (“FMLA”); for commission of the

tort of negligent retention under state law; and for punitive damages and attorneys’

fees, brought against her former employer, KB Home, and her former supervisor,

Daniel Waibel. First, she argues that the district court erred in granting summary

judgment on her Title VII sex discrimination disparate treatment claim because she

presented direct evidence of discrimination and established a prima facie case with

circumstantial evidence of discrimination. Second, she argues that the district

court erred in granting summary judgment on her Title VII sexual harassment

claim because she suffered a tangible employment action—withdrawal of work

assignments—and the hostile work environment interfered with her job

performance. Third, she contends that the district court erred in finding that she

did not present direct evidence of retaliation for taking protected FMLA leave or

that she did not establish a prima facie case of retaliatory discharge. Fourth, she



                                           2
argues that the district court erred in granting summary judgment on her state law

claim of negligent retention of Waibel. Finally, she argues that the district court

erred in granting summary judgment on her claims for punitive damages and

attorney’s fees.

      Upon review of the parties’ briefs and the record, we affirm the district

court’s grant of summary judgment for KB Home for all claims on appeal.

                             I. STANDARD OF REVIEW

      We review a grant of summary judgment de novo and view the evidence in

the light most favorable to the nonmoving party. Brooks v. County Comm'n of

Jefferson County, Ala., 446 F.3d 1160, 1161–62 (11th Cir. 2006) (citing Patrick v.

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000)). Summary judgment

should be granted if “the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                   II. DISCUSSION

                   A. Title VII Sex Discrimination Disparate Treatment

      An employer may not “discharge any individual, or otherwise to

discriminate against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such individual's . . . sex,”



                                            3
and, following enactment of the PDA, this includes discrimination on the basis of

“pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e-

2(a)(1), 2000e(k); Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320 (11th

Cir. 2000) (per curiam). In other words, an employer is not permitted to take an

“adverse employment action” against an employee on the basis of his or her sex or

pregnancy, as to do so would constitute illegal discrimination. See Davis v. Town

of Lake Park, Fla., 245 F.3d 1232, 1235 (11th Cir. 2001) (adverse employment

action is required to obtain relief under Title VII’s anti-discrimination clause).

Thus, an “adverse employment action” is a crucial component in any

discrimination claim under Title VII because without it, Title VII offers no remedy.

See id. Whether an employment action is adverse is a matter of federal law, not

state law. Hinson v. Clinch County, Ga. Bd. Of Educ., 231 F.3d 821, 828–29 (11th

Cir. 2000). It is also a question of fact, although one still subject to the traditional

rules governing summary judgment. See id. at 830 (noting that a reasonable

factfinder could have concluded that the plaintiff suffered an adverse employment

action, thus indicating that whether an employment action is adverse is a question

of fact); Fed. R. Civ. P. 56(c).

      A plaintiff “must show a serious and material change in the terms,

conditions, or privileges of employment” to establish an adverse employment



                                            4
action. Davis, 245 F.3d at 1239 (emphasis in original). The actions must also be

viewed under the totality of circumstances. See Akins v. Fulton County, Ga., 420

F.3d 1293, 1301 (11th Cir. 2005) (citing Shannon v. Bellsouth Telecomms., Inc.,

292 F.3d 712, 716 (11th Cir. 2002)) (“In deciding whether employment actions are

adverse, we consider the employer’s acts both individually and collectively.”);

Bass v. Bd. of County Comm'rs, Orange County, Fla., 256 F.3d 1095, 1118 (11th

Cir. 2001) (“While the other actions might not have individually risen to the level

of adverse employment action under Title VII, when those actions are considered

collectively, the total weight of them does constitute an adverse employment

action.”). It is important to note, however, that not all conduct by an employer that

negatively affects an employee constitutes adverse employment action in a

discrimination context. Davis, 245 F.3d at 1238. Additionally, “the employee’s

subjective view of the significance and adversity of the employer’s action is not

controlling; the employment action must be materially adverse as viewed by a

reasonable person in the circumstances.” Id. at 1239. Under the Supreme Court’s

precedent in Burlington Northern & Santa Fe Railway Company v. White, a

plaintiff must show that the employer’s challenged action “would have been

materially adverse to a reasonable employee,” that it would have “likely . . .

dissuad[ed] a reasonable worker from making or supporting a charge of



                                          5
discrimination,” and that the plaintiff was harmed by this. 548 U.S. 53, 57, 126 S.

Ct. 2405, 2409 (2006).

      Under FMLA regulations, temporary reassignment to accommodate leave is

permissible. 29 C.F.R. § 825.204(a). A reduction in hours may be accompanied

by a reduction in overall pay, however, so long as the hourly rate remains constant.

29 C.F.R. § 825.204(c). An employer may also alter duties or responsibilities in

connection with an employee’s needs under the FMLA. 29 C.F.R. § 825.204.

      With respect to Title VII, in Davis, we noted that temporary changes in work

assignments that were essentially demotions but did not change the employee’s pay

status did not meet the definition of adverse employment action. 245 F.3d at 1240.

While we declined to hold that a change in work assignments can never by itself

give rise to a Title VII claim, we observed that in the majority of instances, “a

change in work assignments, without any tangible harm” is outside the protection

of Title VII's anti-discrimination clause, “especially where . . . the work assignment

at issue is only by definition temporary and does not affect the employee’s

permanent job title or classification.” Id. at 1245. A transfer to a different position

can also be “adverse” if it involves a reduction in “pay, prestige, or responsibility.”

Hinson, 231 F.3d at 829 (internal quotation marks omitted).

      Hyde argues that the reduction of her pay rate, disallowance of vacation time



                                           6
during leave, and withdrawal of substantially all of her work assignments

constituted a serious and material change in employment involving a loss of

prestige and responsibility. KB Home responds that it provided Hyde with every

benefit to which she was entitled under the FMLA and that Hyde’s unsubstantiated

claim that her pay was reduced at some point is specious. Additionally, KB Home

argues that there is no record evidence showing that Hyde was denied vacation

time, and Hyde admits that she was given as much time off as needed under the

FMLA. KB Home also responds that temporary reduction and reassignment of job

duties in preparation for an employee’s maternity leave does not rise to the level of

a serious and material change of the terms of employment, and therefore, cannot

constitute adverse employment action.

      Hyde additionally argues that the withdrawal of substantially all of her job

responsibilities a month and a half before she took any intermittent leave were not

actions taken by her employer to accommodate her FMLA leave requests. KB

Home argues that it had to have a plan in place to continue its operations and

ensure that work was getting done in a timely fashion when Hyde was out of the

office taking intermittent and continuous FMLA leave. Thus, KB Home responds

that it simply took reasonable steps to ensure that this would occur. It additionally

argues that a temporary reassignment of job duties is proper under the FMLA, and



                                          7
such temporary reassignment cannot, at the same time, somehow be deemed to

constitute an adverse employment action for Title VII purposes.

      Hyde failed to present evidence of an adverse employment action, and

therefore, she has not presented a cognizable claim for Title VII sex discrimination

disparate treatment. First, Hyde relies on Hinson for the proposition that an action

may be considered an adverse employment action under Title VII “if it involves a

reduction in pay, prestige, or responsibility.” 231 F.3d at 829 (emphasis added).

In Hinson, a female plaintiff’s transfer from high school principal to an

administrative position, and eventually a full-time teacher constituted adverse

employment action because the administrative position entailed a significant loss

of pay, and there was an issue of fact that the new position was less prestigious. Id.

Hyde’s case is distinguishable because Hyde’s job title did not change, she did not

receive a reduction in pay for taking FMLA leave, and although her responsibilities

were reduced and reassigned, it was the result of KB Home preparing for Hyde’s

intermittent and continuous medical leave. Additionally, “[a]ny adversity must be

material; it is not enough that a transfer imposes some de minimis inconvenience or

alteration of responsibilities.” Doe v. Dekalb County Sch. Bd., 145 F.3d 1441,

1453 (11th Cir. 1998) (emphasis in original). Here, Hyde was not transferred or

demoted, but her job title and salary remained the same, and her reduction in



                                          8
responsibilities alone, therefore, did not amount to an adverse employment action.

KB Home’s reassignment of Hyde’s job responsibilities to Tammy Catchings and

Cheryl Nelson were also proper in order to prepare for Hyde’s intermittent and

continuous FMLA leave. There is evidence that some of Hyde’s duties were daily

ones, and some days were more intensive than others. This support’s KB Home’s

reasoning that it withdrew Hyde’s duties because it needed to adequately prepare

those who would be replacing Hyde while she was out on leave.

       Therefore, we affirm the decision of the district court granting summary

judgment in favor of KB Home on Hyde’s Title VII sex discrimination disparate

treatment claim because Hyde did not suffer an adverse employment action.

                             B. Title VII Sexual Harassment

       Under Title VII, 42 U.S.C. § 2000e-2(a)(1), sex-based harassment of an

employee is forbidden. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1244–45

(11th Cir.1999) (en banc) (stating that although Title VII does not mention

harassment, the Supreme Court includes harassment as actionable under Title VII).

To prove sexual harassment, a plaintiff may rely on either a “tangible employment

action” theory or a “hostile work environment” theory.1 Hulsey v. Pride

       1
         Hyde appears to have raised both “tangible employment action” and “hostile work
environment” theories of sexual harassment in Count I of her complaint. Doc. 1 at 19–21 (“Count
I: Violation of Title VII Gender-Based Discrimination with Tangible Employment Action” and
alleging that the “gender-based discrimination by Defendant Waibel and the failure of KB Home
to take adequate remedial measures to remedy discrimination . . . unreasonably interfered with

                                              9
Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). “[A] tangible

employment action is a significant hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant

change in benefits.” Id. (internal quotation marks omitted) (quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 2268 (1998)). The test

for an adverse employment action in a disparate treatment context is similar to the

one for a “tangible employment action” in a harassment analysis. Webb-Edwards

v. Orange County Sheriff's Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (equating

“tangible employment action” with “adverse employment action”). Additionally,

in order to establish employer liability, a plaintiff must also establish a “causal link

between the tangible employment action and the sexual harassment.” Cotton v.

Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006).

Because Hyde failed to establish an “adverse employment action” under her Title

VII disparate treatment discrimination claim, she likewise has not established a



Plaintiff’s work performance and created and intimidating, hostile and offensive working
environment”). The Magistrate Judge’s report and recommendation, however, only addressed
Hyde’s harassment claim under the tangible employment action theory and denied summary
judgment on Hyde’s harassment claim because there was a genuine issue of material fact as to
whether a reduction in responsibilities constituted a “tangible employment action.” Doc. 99 at
43–46. Although the district court granted summary judgment on the harassment claim without
explanation, it appears that when the district court found that Hyde’s Title VII disparate treatment
discrimination claim could not survive, it concurrently found that Hyde’s Title VII harassment claim
also could not survive. Doc. 110 at 4. Because it is unclear which theory of harassment Hyde
makes her claim under, we address both theories upon review of the district court’s grant of
summary judgment for KB Home.

                                                10
“tangible employment action” for her Title VII harassment claim. Therefore,

Hyde’s harassment claim under the “tangible employment action” theory cannot

survive KB Home’s motion for summary judgment.

       A Title VII harassment claim under the “hostile work environment” theory 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370

(1993) (internal quotations and citations omitted) (holding that Title VII is not

implicated in the case where there is a mere utterance of an epithet); Miller v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). To prove sexual

harassment under a hostile work environment theory, a plaintiff must show that:

(1) she is a member of a protected group; (2) she was subjected to unwelcome

sexual harassment; (3) the harassment was based on her 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 employer liability. Mendoza, 195 F.3d at 1245.

       As the fourth element, severe and pervasive, contains both an objective and a

subjective element, this behavior must result in both an environment “that a



                                            11
reasonable person would find hostile or abusive,” and an environment that the

victim “subjectively perceive[s] . . . to be abusive.” Harris, 510 U.S. at 21, 114 S.

Ct. at 370; Miller, 277 F.3d at 1276. In evaluating the objective severity of the

harassment, this Court looks at the totality of the circumstances and considers,

inter alia, “(1) the frequency of the conduct, (2) the severity of the conduct, (3)

whether the conduct is physically threatening or humiliating, or a mere offensive

utterance, and (4) whether the conduct unreasonably interferes with the employee’s

job performance.” Miller, 277 F.3d at 1276 (citing Allen v. Tyson Foods, 121 F.3d

642, 647 (11th Cir. 1997)).

      The conduct and comments that Hyde provides for her harassment claim

based on a “hostile work environment” theory do not rise to the level of conduct

that is “severe or pervasive to alter the conditions of [her] employment.” Harris,

510 U.S. at 21, 114 S. Ct. at 370. Although several stray comments by Waibel

were directed towards Hyde, arguably indicating that her reduction in

responsibilities was due to her pregnancy, these comments to not rise to the level

of being “severe or pervasive,” and they did not occur until after Hyde returned to

work after taking FMLA leave. Hyde additionally argues that Waibel’s conduct in

the office before she went on FMLA leave, specifically ignoring Hyde or

slamming papers on Hyde’s desk, constituted severe or pervasive conduct that



                                           12
altered her working conditions. However, Hyde does not provide any evidence

that such conduct occurred as a result of her pregnancy or taking FMLA leave, and

such conduct was not severe or pervasive to create a hostile work environment.

Finally, Hyde does not offer any evidence that would indicate that Waibel’s

comments or conduct unreasonably interfered with her job performance.

Therefore, Hyde’s Title VII harassment claim based on a “hostile work

environment” theory cannot survive KB Home’s motion for summary judgment.

      Based on the record and the parties’ briefs, we affirm the district court’s

grant of summary judgment for KB Home on Hyde’s Title VII sexual harassment

claim because there is no genuine issue of material fact as to Hyde’s claim based

on either a “tangible employment action” theory or a “hostile work environment”

theory.

          C. FMLA Retaliation and Title VII and FMLA Retaliatory Discharge

      Pursuant to the FMLA, 29 U.S.C. § 2615(a)(2), it is unlawful “for any

employer to discharge or in any other manner discriminate against any individual

for opposing any practice made unlawful by this subchapter.” Similarly, Title VII,

42 U.S.C. § 2000e-3(a), makes it unlawful for an employer to discriminate against

an employee because he or she “has opposed any practice made an unlawful

employment practice by this subchapter . . . .” This includes internal complaints of



                                          13
discrimination. See Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400

(11th Cir. 1989). Such discrimination may be proven through direct or

circumstantial evidence. See Berman v. Orkin Exterminating Co. Inc., 160 F.3d

697, 701 (11th Cir. 1998). Statements made by a non-decision maker are not

probative of discriminatory intent as direct evidence. Standard v. A.B.E.L. Servs.

Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

      To establish a prima face case of retaliation using circumstantial evidence, a

plaintiff may show that “(1) [she] engaged in a statutorily protected activity; (2) the

employer took an adverse employment action against him; and (3) there is a causal

connection between the protected activity and the adverse action.” Berman, 160 at

701; see also Martin v. Brevard County Pub. Schs., 543 F.3d 1261, 1268 (11th Cir.

2008) (per curiam) (citing Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,

798 (11th Cir. 2000) (setting out elements for prima facie case of FMLA

retaliation). If the plaintiff makes out a prima facie case, the burden shifts to the

employer to offer a legitimate non-discriminatory reason for its actions.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824

(1973). If one is offered, the presumption of discrimination is rebutted, and the

plaintiff must offer evidence that the reason is pretext for illegal discrimination.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (citing Tex.



                                           14
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255–56, 101 S. Ct. 1089, 1094–95

(1981)).

         Under a “cat’s paw” or mixed-motive theory of liability, “a non-

decisionmaking employee’s discriminatory animus may be imputed to a neutral

decisionmaker when the decisionmaker has not independently investigated

allegations of misconduct.” Crawford v. Carroll, 529 F.3d 961, 979 n.21 (11th

Cir. 2008). “Where a decision maker conducts his own evaluation and makes an

independent decision, his decision is free of the taint of a biased subordinate

employee.” Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir.

2001). In a mixed-motive case, the plaintiff must prove that her gender played a

motivating part in an employment decision, and the defendant must show that it

would have made the same decision regardless of the plaintiff’s status in order to

avoid liability. Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775,

1795 (1989) (plurality opinion). Where a defendant does so, the burden shifts back

to the plaintiff to demonstrate that termination was motivated by the improper

consideration. Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir.

2007).

         Hyde argues that both withdrawal of her work assignments and her

termination were the result of retaliation. She argues that she presented direct



                                           15
evidence of the pre-termination retaliation through statements by Waibel stating

that he took her work away “because she got F-ing pregnant” and “was tired of her

milking the system.” She contends that her termination was the result of retaliation

and can be established via circumstantial evidence. As to Hyde’s pre-termination

FMLA retaliation claim, although there is direct evidence that Waibel withdrew

Hyde’s work and reassigned her duties because Hyde chose to take FMLA leave,

the reduction and reassignment of duties did not constitute adverse employment

actions, but were a means of accomodating Hyde’s FMLA leave. Therefore,

Hyde’s FMLA pre-termination retaliation claim cannot survive KB Home’s motion

for summary judgment.

      Additionally, the district court did not err in granting summary judgment on

Hyde’s Title VII and FMLA retaliatory discharge claims. There is no evidence

that Waibel was a decision maker in terminating Hyde. Therefore, even if Waibel

wished to terminate Hyde for using FMLA leave, his lack of involvement in

Hyde’s termination means that such evidence cannot establish a retaliatory

discharge claim. Further, Hyde cannot establish a “cat’s paw” theory of retaliatory

discharge because she has not presented evidence that any of the actual decision

makers had any substantial input from Waibel in making their decision. Finally,

she did not show that this was a mixed motive case because the only evidence of a



                                         16
discriminatory motive rests with Waibel, and he did not participate in the decision

to terminate her through the reduction in force (“RIF”). There is no evidence that

her gender or status as a pregnant woman played any role in her dismissal through

RIF. Accordingly, the decision of the district court granting summary judgment to

KB Home and Waibel regarding her FMLA retaliation claim for withdrawal of

work assignments is affirmed, and the grant of summary judgment on her claims

for Title VII and FMLA retaliatory discharge are affirmed.

               D. Georgia State Law Claim for Negligent Retention

      “In a cause of action for negligent retention, an employer may be held liable

only where there is sufficient evidence to establish that the employer reasonably

knew or should have known of an employee’s ‘tendencies’ to engage in certain

behavior relevant to the injuries allegedly incurred by the plaintiff.” MARTA v.

Mosley, 634 S.E.2d 466, 469 (Ga. Ct. App. 2006) (citation and quotation marks

omitted).

      The district court correctly concluded that Hyde presented no evidence that

KB Home knew or should have known of any tendency of Waibel to discriminate

against pregnant women. Her first complaint about Waibel to KB Home did not

occur until after she returned from leave in August, at which point she met with

HR to discuss the problem and was promptly reassigned to work under another



                                         17
supervisor in a different department. Complaints by another employee about

earlier animosity towards Hyde were similarly dealt with when Hyde returned from

leave. Additionally, because KB Home was not on notice about a hostile work

environment before Hyde went on leave, they cannot be held liable for negligent

retention. Further, Waibel was terminated shortly after Hyde complained, albeit

for unrelated reasons. Accordingly, the decision of the district court granting

summary judgment to KB Home on Hyde’s negligent retention claim is affirmed.

                      E. Punitive Damages and Attorneys’ Fees

      We review an award in a Title VII case for abuse of discretion and

underlying legal claims de novo. See EEOC v. W & O, Inc., 213 F.3d 600, 610

(11th Cir. 2000) (citation omitted). A plaintiff may recover punitive damages

under Title VII if the defendant “engaged in a discriminatory practice . . . with

malice or with reckless indifference to the federally protected rights of an

aggrieved individual.” 42 U.S.C. § 1981a(b)(1). Pursuant to 42 U.S.C. §

2000e-5(k), a court in its discretion may allow the prevailing party reasonable

attorneys’ fees.

      Because the district court’s grant of summary judgment to KB Home is

affirmed as to Hyde’s Title VII claims, Hyde cannot recover punitive damages

under 42 U.S.C. § 1981a(b)(1). Accordingly, the grant of summary judgment



                                          18
regarding punitive damages is affirmed. Because the district court’s grant of

summary judgment on all claims is affirmed, and Hyde is not a prevailing party;

the decision to grant summary judgment regarding attorneys’ fees is also affirmed.

                               III. CONCLUSION

      Upon review of the record and the parties’ briefs, we affirm the district

court’s grant of summary judgment to KB Home and Waibel on Hyde’s Title VII

discrimination, harassment, and retaliation claims; FMLA retaliation claim;

Georgia state law negligent retention claim; and punitive damages and attorneys’

fees claims.



      AFFIRMED.




                                         19
