           Case: 18-15068   Date Filed: 09/16/2019   Page: 1 of 10


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-15068
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:17-cv-00434-HLA-MCR



ELITE AMENITIES, INC.,

                                                           Plaintiff - Appellant,

                                   versus

JULINGTON CREEK PLANTATION COMMUNITY DEVELOPMENT
DISTRICT,

                                                          Defendant - Appellee.

                       ________________________

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

                            (September 16, 2019)

Before TJOFLAT, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      This case was brought by Elite Amenities, Inc., an entity that provides

amenity-management services (think pool maintenance), against Julington Creek

Plantation Community Development District. Elite and the Community’s board

entered into a contract for services, a contract that the board subsequently

terminated (and could terminate without cause). Shortly before being terminated

from the contract, Elite’s owner reported to the board’s business-operations advisor

inappropriate conduct, against one of its black employees, by a board member.

That conduct was that the board member treated the employee in a “harsh and

unfair manner” compared to the white employee he had replaced and that the board

member was “critical” of and “disrespectful” of the employee “for no good

reason[].”

      Elite brings to our attention two specific manifestations of this conduct. The

board member visited the employee’s office “numerous” times, and during some of

these visits the board member went through papers on the employee’s desk “as

though he was not engaging in ethical behavior.” And the board member sent

emails to the employee, some of which were “very pointed.” That’s it.

      Upon being terminated from the contract, Elite cried foul play, alleging that

its email reporting of the conduct was a statutorily protected activity, that it was




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terminated from the contract for that reporting, and that, accordingly, the

termination violated 42 U.S.C. § 1981. 1 We disagree.

       To constitute a protected activity, the plaintiff must have an objectively

reasonably belief that unlawful employment practices are afoot. Here, the owner’s

belief, assuming it was subjectively held, was not objectively reasonable. Because

the employee was not fired (or subjected to any discrete act), the only possibly

unlawful employment practice was that the Community oversaw a hostile work

environment. But proving a hostile work environment is a heavy burden—one that

cannot be met merely by showing unprofessional encounters and harshly worded

emails. So because the owner could not have reasonably believed that the

Community oversaw a hostile work environment, she was not engaged in a

statutorily protected activity when she sent the email. As such, Elite’s retaliation

claim fails as a matter of law, and the District Court’s grant of summary judgment

for the Community was warranted.

                                              I.

       We review de novo a district court’s grant of a motion for summary

judgment, “viewing all of the facts in the record in the light most favorable to the


       1
          Elite also brought claims under 42 U.S.C. § 1983 and under Florida law, neither of
which are before us. The Community counterclaimed for breach of contract, a claim that the
District Court declined to exercise supplemental jurisdiction over upon granting summary
judgment on Elite’s claims. See 28 U.S.C. § 1367(c). The Community has not cross-appealed
the Court’s decision not to exercise jurisdiction over the counterclaim.


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non-movant.” United States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d

1148, 1153 (11th Cir. 2017) (quoting Haynes v. McCalla Raymer, LLC, 793 F.3d

1246, 1249 (11th Cir. 2015)). We affirm upon a showing that there is “‘no genuine

dispute as to any material fact’ such that ‘the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

                                               II.

       To prevail on a retaliation claim under § 1981, a plaintiff must prove “that

she engaged in statutorily protected activity, that she suffered an adverse action,

and that the adverse action was causally related to the protected activity.”

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018). 2 In issue here,

among other things, is the first element—whether the owner’s email constituted a

“statutorily protected activity.”

       The plaintiff, to be engaged in statutorily protected activity, must show “that

he had a good faith, reasonable belief that the employer was engaged in unlawful

employment practices.” Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1213 (11th

Cir. 2008) (quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956,

960 (11th Cir. 1997)). Thus, “this standard has both a subjective and an objective

component,” a facet of the law we have identified as “critical.” Id. (citation


       2
        “We examine claims of . . . retaliation under the same legal framework regardless of
whether the plaintiff invokes section 1981 or section 2000e.” Jefferson, 891 F.3d at 919. As
such, we incorporate into our analysis caselaw analyzing retaliation claims under both statutes.


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omitted). “A plaintiff must not only show that he subjectively (that is, in good

faith) believed that his employer was engaged in unlawful employment practices,

but also that his belief was objectively reasonable in light of the facts and record

presented.” Id. (citation omitted).

      The only unlawful employment practice that the owner could have identified

here is something that gave rise to, what our cases call, a “hostile work

environment claim.” See Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012)

(per curiam). This is so because Elite has not identified any “discrete acts” that the

employee was subjected to, see McCann v. Tillman, 526 F.3d 1370, 1379 (11th

Cir. 2008), such as “termination, failure to promote, denial of transfer, or refusal to

hire,” Gowski, 682 F.3d at 1313 (quoting McCann, 526 F.3d at 1378). At most,

rather, it has identified “‘repeated conduct,’ such as ‘discriminatory intimidation,

ridicule, and insult.’” See id. at 1311 (quoting McCann, 536 F.3d at 1378).

      To prevail on a hostile work environment claim, a plaintiff must show that

“(1) he or she belonged to a protected group, (2) he or she was subjected to

unwelcome harassment, (3) the harassment was based on a protected characteristic,

(4) the harassment was sufficiently severe or pervasive to alter the terms and

conditions of his or her employment and create an abusive working environment,

and (5) a basis exists for holding the employer liable.” Trask v. Sec’y, Dep’t of

Veterans Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016). Because it is dispositive



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of our analysis, we focus on the fourth element—the requirement that the

harassment be “sufficiently severe or pervasive.”

      Whether conduct is sufficiently severe or pervasive requires us to assess “the

totality of the circumstances.” Gowski, 682 F.3d at 1312. We consider “(1) the

frequency of the conduct;3 (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.” Id. (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1276 (11th Cir. 2002)). Like other factor tests, “‘no single factor is required’ to

establish the objective component.” See Smelter v. S. Home Care Servs. Inc., 904

F.3d 1276, 1287 (11th Cir. 2018) (quoting Harris v. Forklift Sys., Inc., 510 U.S.

17, 23, 114 S. Ct. 367, 371 (1993)).

                                               A.

      We observe at the outset that this case much resembles Trask v. Secretary,

Department of Veterans Affairs, where we identified insufficient evidence of an

objectively hostile work environment and thus affirmed the district court’s grant of

summary judgment for the defendant. 822 F.3d at 1196. The plaintiffs there

“broadly cite[d] to several instances in which . . . management behaved rudely and

made comments that plaintiffs considered offensive, belittling, and humiliating.”

      3
          As indicated by the cases below, frequency also encompasses duration.


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Id. These “struggles,” id., we explained, “exemplifie[d] ‘the ordinary tribulations

of the workplace, which does not constitute actionable harassment.’” Id.

(alterations adopted) (quoting Gupta, 212 F.3d at 586). As in Trask, the conduct

here was, at worst, unprofessional, and so no person could reasonably believe that

the Community oversaw a hostile work environment. We hold that the board

member’s uninvited, unpleasant office visits; physical engagement with the

employee’s work papers; and harsh emails are nothing more than ordinary

tribulations of the workplace.

      In addition to analogizing to Trask, we deem it prudent to march through the

four factors that this Court has enumerated. See Gowski, 682 F.3d at 1312. As

explained below, not a single factor weighs in Elite’s favor.

                                         B.

      First, the conduct was not frequent. When the owner wrote the email, she

had witnessed “numerous” interactions between the employee and the board

member, but the employee had worked at the company for merely three weeks. Cf.

Smelter, 904 F.3d at 1285, 1294 (reversing the district court’s grant of summary

judgment for the defendant when among other reasons conduct occurred “every

day” for “two months” (citations omitted)); Adams v. Austal, U.S.A., L.L.C., 754

F.3d 1240, 1245, 1251−54 (11th Cir. 2014) (vacating the district court’s grant of

summary judgment for the defendant when among other reasons conduct occurred



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“all the time,” “every day,” “every morning,” “regularly,” “frequently,” “numerous

times,” and “on multiple occasions” over a period of between one and five-and-a-

half years); Gowski, 682 F.3d at 1313 (affirming the district court’s entry of

judgment pursuant to a jury verdict for the plaintiff when among other reasons

conduct occurred “over a period of years”); Jones v. UPS Ground Freight, 683

F.3d 1283, 1287, 1303 (11th Cir. 2012) (vacating a district court’s grant of

summary judgment for the defendant when among other reasons conduct occurred

“seven” times over the course of a “year’s employment”). The conduct here,

occurring only a few times over three weeks, is thus unlike cases in which the first

factor has weighed in the plaintiff’s favor.

      Second, the conduct was not severe. The employee received unsolicited

office visits—during which the board member spoke to the employee in an

“unacceptable and harassing manner” (and rifled through his papers)—and emails

that were “very pointed.” Our cases that find severe or pervasive harassment based

on race, however, all identify harassment that is of a racial nature. See, e.g.,

Smelter, 904 F.3d at 1286 (noting among other things that the plaintiff was called a

“dumb black [n****r]” and told that her hair made her resemble a “mixed

monkey” (citations omitted)); Adams, 754 F.3d at 1251−54 (noting among other

things that the plaintiffs saw nooses in the breakroom and racist graffiti in the

restroom and were forced to work alongside co-workers and supervisors who wore



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shirts with the Confederate flag and used racial slurs); Jones, 683 F.3d at 1303

(noting among other things that the plaintiff found banana peels on his truck and

was forced to work alongside co-workers who wore shirts with the Confederate

flag). So even if the employee was targeted by the board member because he was

black, the form that the targeting took was not racial.

      Third, the conduct at issue was not physically threatening. Cf. Jones, 683

F.3d at 1303 (observing that the plaintiff was approached by two co-workers, “at

night,” one of whom was wielding “an object that could be perceived as a

weapon”). And for reasons that mirror our analysis on the second factor, the

conduct also was not humiliating. Cf. Smelter, 904 F.3d at 1286 (noting among

other things that “racial slurs were directed at [the plaintiff] every day”).

      Last, the record contains no evidence that the owner believed the conduct to

interfere with the employee’s job performance. Indeed, she was concerned more

about the “appearance” of the board member’s repeated presence in the employee’s

office, see Appellant’s Br. at 3, than its effect, if any, on the employee’s ability to

discharge his job.

                                     *     *      *

      Simply put, the owner could not have held a “reasonable belief that the

employer was engaged in unlawful employment practices.” See Butler, 536 F.3d at

1213 (quoting Little, 103 F.3d at 960). As such, Elite, through its owner, did not



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engage in “statutorily protected activity.” See Jefferson, 891 F.3d at 924. We

agree with Elite that the board member’s conduct was unprofessional and unfit for

a professional environment. Yet we have repeatedly said that “[§ 1981] is not a

civility code,” see Trask, 822 F.3d at 1195, and the conduct here is not one for

which there is a legal remedy.

                                          III.

      For these reasons, we AFFIRM the District Court’s grant of summary

judgment on the § 1981 retaliation claim for the Community.




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