                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11719         ELEVENTH CIRCUIT
                                                                  NOVEMBER 3, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________          CLERK

                               D.C. Docket No. 1:10-cv-00103-CB-C

VIVIAN DUDLEY,

llllllllllllllllllllllllllllllllllllllll                                 Plaintiff-Appellant,

                                                  versus


CITY OF MONROEVILLE, ALABAMA,

                                           llllllllllllllllllllllllllllllllllllDefendant-Appellee.

                                     ________________________

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

                                           (November 3, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:

         Vivian Dudley, an African American female, filed a lawsuit against her

current employer, the City of Monroeville, alleging retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). After discovery, the

City filed a motion for summary judgment, which the district court granted.

Dudley then filed this appeal making three principal arguments: (1) that she

established a prima facie case of retaliation; (2) that summary judgment was

inappropriate because the record contains sufficient evidence to cast doubt on

whether the City’s non-retaliatory explanations for its actions are legitimate; and

(3) that the district court did not draw all reasonable inferences in her favor

because it accepted unsworn statements as evidence against her, yet refused to

consider an unsworn statement as evidence against the City.

                                          I.

       After the City promoted Dudley from court magistrate to court

clerk/magistrate, she learned that her salary did not increase to the same level as

those of similarly situated employees. Believing the reason for this disparity was

race discrimination, Dudley filed a complaint with the Equal Employment

Opportunity Commission. She alleges that after she filed this EEOC charge her

immediate supervisor, Judge Phillip Sanchez, retaliated by suspending her,

reprimanding her, denying her a pay increase, ordering her to attend a training

session, and encouraging citizens to file complaints against her. Dudley then filed




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a second EEOC complaint alleging retaliation in violation of Title VII, which is

the only claim she has asserted in this lawsuit.

      In its motion for summary judgment, the City contended that Dudley could

not show a causal connection between the first EEOC complaint and the adverse

employment actions. It also proffered non-retaliatory reasons to justify Judge

Sanchez’s actions, claiming among other things that Dudley was insubordinate,

was the subject of several citizen complaints, made personal long-distance phone

calls while at work, and failed to use the City’s time-keeping system properly.

      The district court granted summary judgment to the City, concluding

Dudley did not establish a prima facie case of retaliation. It also reasoned that,

even if Dudley had satisfied her initial burden, she did not create a factual issue

regarding whether the City’s non-retaliatory justifications were pretextual.

                                          II.

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

the same legal standard as the district court and viewing all evidence in the light

most favorable to the nonmoving party. Miccosukee Tribe of Indians of Fla. v.

United States, 516 F.3d 1235, 1243 (11th Cir. 2008). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). “A moving party is entitled to summary judgment if the nonmoving

party has ‘failed to make a sufficient showing on an essential element of her case

with respect to which she has the burden of proof.’” Parks v. City of Warner

Robins, 43 F.3d 609, 612 (11th Cir. 1995) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986)).

                                         III.

      Title VII makes it unlawful to discriminate against employees on the basis

of race, color, sex, religion, or national origin. 42 U.S.C. § 2000e-2(a). It also

prohibits employers from retaliating against employees who oppose “unlawful

employment practice[s]” or who make charges against an employer during “an

investigation, proceeding, or hearing.” Id. § 2000e-3(a).

       We use the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), when a plaintiff relies on

circumstantial evidence to establish a Title VII retaliation claim, as Dudley does

here. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).

The plaintiff first bears the burden of establishing the three prongs of a prima facie

case of retaliation. She must show that “(1) [s]he engaged in statutorily protected

activity; (2) [s]he suffered a materially adverse action; and (3) there was a causal

connection between the protected activity and the adverse action.” Howard v.

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Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Once a plaintiff establishes

a prima facie case, the burden shifts to the employer to “proffer a legitimate, non-

retaliatory reason for the adverse employment action.” Olmsted v. Taco Bell

Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). If the employer succeeds, the

plaintiff must then show by a preponderance of the evidence that the proffered

reason for the adverse action is “a pretext for prohibited, retaliatory conduct.” Id.;

see also McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008).

      For simplicity, we will assume that Dudley can establish a prima facie case

of retaliation. The City’s burden, then, is to proffer a legitimate, non-retaliatory

reason for its adverse actions. It has provided several, including time-keeping

errors, citizen complaints, insubordination, and poor job performance. It also

claims that Dudley took on an intern without permission and incurred

unauthorized overtime. To survive summary judgment, Dudley must present

sufficient evidence to cast doubt on the validity of these non-retaliatory reasons in

the mind of a reasonable juror. See Crawford v. Carroll, 529 F.3d 961, 976 (11th

Cir. 2008).

      Dudley has offered only conclusory allegations of pretext in her attempt to

rebut the City’s non-retaliatory justifications. She has not challenged the City’s

claim that it received complaints about her work performance. Nor does she deny

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making time-keeping errors. In fact, Dudley concedes that some of the City’s

explanations are true, admitting that she took on an intern without permission and

incurred unauthorized overtime.1 To survive summary judgment, Dudley must

create a genuine issue of material fact both as to whether the City’s reasons are

false and as to whether “discrimination was the real reason.” St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993). She has done

neither. Instead, Dudley admitted that some of the reasons are true and provided

no specific evidence that would “allow a factfinder to disbelieve [the City’s]

proffered explanation for its actions.” Combs v. Plantation Patterns, 106 F.3d

1519, 1532 (11th Cir. 1997); cf. Chapman v. AI Transp., 229 F.3d 1012, 1030

(11th Cir. 2000) (en banc) (“A plaintiff is not allowed to recast an employer’s

proffered nondiscriminatory reasons or substitute his business judgment for that of

the employer. Provided that the proffered reason is one that might motivate a

reasonable employer, an employee must meet that reason head on and rebut it, and



      1
        Dudley attempts to rebut the City’s non-retaliatory justifications by
claiming that she consistently received positive evaluations from Judge Sanchez
before her first EEOC filing but received a negative evaluation after the filing.
She claims that this reversal establishes pretext. But Dudley neither submitted
evidence of the performance evaluations nor raised this argument before the
district court, so we will not consider it further. See Johnson v. United States, 340
F.3d 1219, 1228 n.8 (11th Cir. 2003) (“Arguments not raised in the district court
are waived.”).
                                          6
the employee cannot succeed by simply quarreling with the wisdom of that

reason.”).

                                         IV.

      Dudley’s final argument is that the district court failed to draw all

reasonable inferences in her favor because it did not consider the unsworn

statement of a citizen who asserted that Judge Sanchez told her to put her

complaint in writing when it ruled on the City’s summary judgment motion.

Unsworn statements do not meet the requirements of Rule 56, so the district court

could not—and properly did not—rely on the content of the citizen’s statement.

Carr v. Tatangelo, 338 F.3d 1259, 1273 n.27 (11th Cir. 2003).

      Nor did the district court violate this rule when it considered the City’s other

proffered evidence of citizen complaints against Dudley. The district court did not

rely on the content of any unsworn citizen complaint; it considered only the

existence of such grievances as evidence that Judge Sanchez had a non-retaliatory

reason for his actions. That purpose is valid, and Dudley did not dispute the

existence of citizen complaints.

AFFIRMED.




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