                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     APRIL 9, 2008
                                                  THOMAS K. KAHN
                            No. 07-12496
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

               D. C. Docket No. 05-00421-CV-FTM-33-SPC

DENISE L. BLANTON,

                                                  Plaintiff-Appellant,

                                  versus

UNIVERSITY OF FLORIDA, by and
through the Board of Trustees
of the University of Florida,

                                                  Defendant-Appellee.

                       ________________________

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

                              (April 9, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Denise L. Blanton appeals the jury’s verdict in favor of the University of

Florida (“UF”) as to her retaliation claims brought pursuant to Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e-3(a). She argues that the district court erred in

allowing testimony as to EEOC findings regarding her previous discrimination

charge against UF. We AFFIRM.

                                 I. BACKGROUND

      Denise Blanton filed a complaint against UF in September 2005, alleging

unlawful employment retaliation. More specifically, she asserted that UF’s letter

of reprimand, based upon her conduct at a December 2004 meeting, had been in

retaliation for her filing of an EEOC charge of race and gender discrimination the

previous October. Blanton later amended her complaint to include a second count

alleging that the “effective[] terminat[ion]” of her position in January 2006 had

been in unlawful retaliation for her having filed the lawsuit. The case ultimately

went to trial before a jury. R1-18 at 3.

      Before trial, Blanton filed a motion in limine seeking to prevent UF from

offering into evidence testimony and exhibits related to the EEOC’s findings with

regard to her October 2004 discrimination charge. This charge alleged that

Blanton’s demotion from her position as the Collier County Extension Director and

the related denial of a salary increase constituted discrimination on the basis of



                                           2
race and gender. Blanton argued that the district court should exclude evidence of

the EEOC findings under Federal Rule of Evidence 403 because “[t]he admission

of an EEOC report, in certain circumstances, may be much more likely to present

the danger of creating unfair prejudice in the minds of the jury[.]” R3-89 at 2

(citing Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1554 (11th Cir. 1995)).

       UF responded that EEOC determinations are relevant and probative at a later

proceeding regarding whether there has been a Title VII violation. UF asserted

that any EEOC determination related to either of the two EEOC grievances upon

which Count One of Blanton’s lawsuit was based 1 was relevant to decide that

claim, and should be admitted into evidence. Further, UF argued, Blanton’s bare

recitation of the holding in Walker was insufficient to show how and why the

probative value of the EEOC’s determination was substantially outweighed by the

danger of unfair prejudice. Despite citing Rule 403, UF asserted, Blanton had

failed to demonstrate how she would be unduly prejudiced by the introduction of

evidence that was “clearly probative . . . [of] the ultimate issue of retaliation.” R3-

92 at 5.

       The district court denied Blanton’s motion, finding that admission of the


       1
         Count one alleged retaliation (in the form of a letter of reprimand) for Blanton’s having
filed the first EEOC charge. Count one was filed on the basis of the right to sue letter resulting
from the second EEOC charge, which alleged that same retaliation. Count two is based on an
additional allegation of retaliation for which Blanton did not file an EEOC charge.

                                                 3
EEOC determination appropriately placed the retaliation claim in the larger context

of the lawsuit. The court also stated that it would give a limiting instruction

directing the jury to use the EEOC determination merely as “background

information,” and not to consider the findings therein binding or otherwise

conclusive of any factual issue in the case. R5 at 33.

       At trial, Blanton, a Hispanic female, testified to the following. She had

worked for the University of Florida Collier County extension program from 1975

to 2007 and served as County Extension Director from 1991 to 2004. Forty

percent of the funding for her position was provided by the county, and the

remaining sixty percent was provided by UF. Id. at 170. At all times during her

employment, she had two immediate supervisors, one from UF and the other from

the county. Charles Vavrina, the District Extension Director, had become

Blanton’s UF supervisor in 2000. Blanton asserted that, during her time as County

Extension Director, her overall job performance had been rated as “outstanding.”

Id. at 172.

       Blanton reported that she had filed a complaint with the EEOC in October

2004 alleging race and sex discrimination after she was demoted from her position

as County Extension Director. On 25 January 2005, she received a letter of

reprimand from Vavrina in response to several complaints Vavrina had received



                                           4
concerning her conduct at the Lawn and Garden Show Wrap-Up meeting held in

December 2004. Vavrina wrote to Blanton:

      [b]ased on the large number of complaints from various sources about
      your professional conduct and your past history of similar complaints,
      I am legitimately concerned that the behavior you reportedly
      displayed on December 14, 2004 . . . is compromising our abilities to
      carry out essential Extension duties and programs. This type of
      behavior will not be tolerated and if continued you could face
      disciplinary action up to and including dismissal.

Exh. Folder 1-96, exh. 34.

      Blanton testified that she was not proud of her conduct at the meeting. She

explained that she had been in a hurry to make a medical appointment downtown,

was under “an awful lot of stress,” and had become “anxious and nervous” when

she realized that the items she had planned to discuss were at the end of the lengthy

agenda. R5 at 175-177. These circumstances prompted her to express her opinion

that the agenda had been poorly organized, but she had not shouted or used

profanity, or personally attacked anyone present at the meeting. She stated that, in

her 30 years with the extension program, she had never received any similar

complaints about her performance, and believed that Vavrina had been instructed

by his superiors at UF to write the letter. Blanton further stated that she considered

the letter to be a threat to her job, and that, while no other reason besides her

conduct at the meeting was given for the reprimand, she “felt [her] whole existence



                                            5
was one of stress and observation, and so forth.” Id. at 179-180.

      On cross-examination, Blanton admitted that the individuals who submitted

complaints regarding her behavior at the meeting had been unaware of her October

2004 EEOC charge. She also acknowledged that she had not lost any rank or pay

as a result of the reprimand. When questioned about the results of the EEOC’s

investigation of her October 2004 discrimination charge, Blanton objected on Rule

403 grounds. The district court overruled the objection, but explained to the jury

that “[w]hile the [EEOC’s] findings may provide you with background . . . [you]

should not consider the findings as conclusive of any factual issue in this case . . .

[and] should not consider these findings binding in your determinations of the facts

in this case.” R6 at 240. In response to defense counsel’s question, Blanton

admitted that the EEOC had found no cause for her complaint. When questioned

regarding the results of the EEOC’s investigation of her retaliation complaint,

Blanton again objected on Rule 403 grounds, and the district court again overruled

the objection. Blanton admitted that the EEOC had also found no cause for a

finding of retaliation after investigating that charge.

      Blanton also presented the testimony of Charles Vavrina, the District

Extension Director for UF and Blanton’s supervisor during the relevant period,

who testified that he had written the letter of reprimand to Blanton in response to



                                            6
numerous complaints he had received regarding her conduct during the December

meeting. The purpose of the letter was to express concern over behavior that had

previously been identified as problematic. When asked whether the letter was a

form of discipline, Vavrina responded that “it was more of a reiteration of

consistent behavior” and constituted the second step in the UF’s progressive

disciplinary process, following an April 2003 evaluation that had put Blanton on

notice that her behavior was becoming unacceptable. R5 at 61. Vavrina further

testified that, while he was aware that Blanton had filed a charge of discrimination

with the EEOC, the January 2005 letter of concern was not retaliatory, but was

warranted based upon the complaints he had received about Blanton, and was

written in order to “bring a second attention to a behavior issue that seem[ed] to be

continuing.” Id. at 122. He stated further that Blanton did not lose any pay or rank

as a result of the reprimand.

      With respect to her second claim of retaliation, Blanton testified that she had

received a copy of a letter in early January 2006 from James Mudd, the County

Manager, stating that the county would no longer provide funding for the Learn to

Lead Program. The letter stated that the county would withdraw its funding on 27

January 2006, and that “[t]his action [would] effectively eliminate the Collier

County Senior Extension Agent position.” Exh. Folder 1-96, exh. 40. Although



                                          7
Blanton’s complaint alleged that she was “effectively terminated” from her

position as Senior Extension Agent when the county decided to withdraw its Learn

to Lead funding, see R1-18, it appears that Blanton remained employed by UF for

a year after her position was eliminated, see R5 at 197-203; Exh. Folder 1-96, exhs.

41-47.

         Blanton testified that, subsequent to the county’s decision to withdraw

funding, she had received a letter from UF informing her that she needed to apply

for other positions. This letter stated that, in accordance with UF rules governing

permanent status faculty members, Blanton would be reassigned to a temporary

position at UF for the following year, with the understanding that she would first

apply for any similar vacant county positions, and, “[i]f [she] [had] not secured

another Extension Agent position by the end of the year which end[ed] January 29,

2007, this temporary employment and [her] permanent status with UF [would] be

terminated.” Exh. Folder 1-96, exh. 41. Blanton explained that she believed she

would have to undergo the entire application process in order to maintain a

position with UF, and she believed that she had little to no chance of procuring

another job within the UF system because she was “an emotional and physical

wreck,” and would be applying for a job with the same people who had told her

that she would be terminated within the year. R5 at 199. Blanton acknowledged



                                            8
that the county, a governmental agency entirely distinct from UF, made the

decision to withdraw funding for her position, and that 100% of her salary was

paid by UF thereafter. She also conceded that she had never applied for another

position within the UF system after the county withdrew funding for her former

position, even though UF had informed her of other job openings.

      Blanton further testified that she was treated differently by her employers,

“held at arm’s length,” and “constantly afraid of what else was going to happen”

after she filed her claims in September 2005. Id. at 184. In October 2005, she was

told she had to transfer immediately from the research center, where she had been

stationed, back to the county office, even though she had been told in August that

her transfer would not become effective until February 2006. She testified that her

leave requests, which had never been denied in the past, had been closely

scrutinized and denied in November 2005, and asserted that she had been subjected

to a hostile work environment. In February 2006, she was reassigned to work from

home, which adversely affected her ability to perform the duties of her position

successfully. According to Blanton, she was never given an explanation for her

reassignment.

      Vavrina testified that the decision to withdraw funding for Blanton’s

position in the Learn to Lead Program was made by the county, not UF. He had



                                          9
not taken part in the decision, and denied having suggested, up the UF chain of

command, that Blanton should be terminated. Vavrina further testified that none of

the actions taken by UF in reassigning Blanton to a temporary position, placing her

on administrative leave for one week, and requesting documentation in support of

her 30-day leave of absence, were retaliatory.

      Marla Ramsey, a Collier County public services administrator, testified that

county officials discussed the program cuts with Vavrina and another UF

employee, Robert Halman. During these conversations, county officials and UF

also discussed the reorganization within the UF extension service in response to

community needs. When asked whether the subject of retaliation concerning

Denise Blanton was raised during the conversations about the reorganization,

Ramsey responded that “[t]here was a. . . some caution to make sure that we treat

all employees the same during the reorg.” R6 at 313. Ramsey clarified that no one

had specifically mentioned any “retaliation” charges, but that the county and UF

were concerned with ensuring that each employee affected by the reorganization

was treated equally. Id. Ramsey further stated that UF extension officials told the

county that UF would provide full funding for Blanton’s position after the decision

to pull the county’s funding became effective because Blanton had tenure, and that

Blanton would thereafter be a full-time employee of UF. Ramsey testified on



                                         10
cross-examination that the county withdrew funding for the Learn to Lead Program

because of a duplication of services. According to Ramsey, the county had its own

leadership program, which it ran through the its human resources department, and

Blanton was not the only person affected by the reorganization. At the conclusion

of Ramsey’s testimony, Blanton rested.

      After the district court denied UF’s motion for a directed verdict, UF

presented the following evidence. Regarding Blanton’s claim of retaliation based

on the letter of reprimand, UF called several witnesses, six of whom testified that

Blanton’s behavior at the December 2004 meeting had been rude, unprofessional,

and offensive. Four of these witnesses had written letters to Vavrina complaining

about Blanton’s conduct, but stated that they did not “target” Blanton, nor write

these letters to help UF retaliate against her. R7 at 376, 392, 407; Exh. Folder 1-

96, exh. 31; Exh. Folder 1-97, exhs. J, K. Other witnesses testified that counseling

was justified and warranted based upon Blanton’s inappropriate behavior at the

meeting. See, e.g., R7 at 451. Finally, Celia Hill, the Lee County extension

director, confirmed that approximately four employees had complained to her that

Blanton had been rude to the volunteers and to the group during the meeting.

      With respect to Blanton’s second claim of retaliation, UF presented three

witnesses who testified that the county, not UF, made the decision to cut funding



                                         11
for the Learn to Lead Program which resulted in the elimination of Blanton’s

position. Millie Ferrer, an associate dean at UF, testified that she was not involved

in any way in the county’s decision to withdraw funding from the Learn to Lead

Program, and that Blanton had been informed of job openings and encouraged to

apply after her position was terminated. Over Blanton’s Rule 403 objection, the

district court allowed Ferrer to testify that the EEOC’s investigations of Blanton’s

2004 discrimination and 2005 retaliation charges had resulted in no findings of

unlawful activity. Ferrer further testified that Blanton had been assigned to work

from home in February 2006 because, following the funding cut, Blanton did not

have a position, and there was no place to put her.

      Jean Merritt, the Collier County Human Resources director, testified that the

county had decided to withdraw funding for the Learn to Lead Program because it

duplicated a training program already offered by the Human Resources Department

and not because Blanton had filed an EEOC complaint. She confirmed that UF

had not pressured the county into making the decision to pull funding for the

program. Marcie Krumbine, director of Collier County Housing and Human

Services, testified that the county was not interested in continuing the Learn to

Lead Program because it preferred a program that focused more generally on

leadership skills and development, and less on identifying and solving specific



                                          12
problems using leadership skills, which was how Blanton had described her

program to the county. UF also introduced documentary evidence showing a

pattern of performance issues related to Blanton’s employment with the extension

service. The EEOC determinations themselves were not admitted into evidence.

       At the close of all of the evidence, UF moved again for a directed verdict,

which the district court denied. In closing, defense counsel referred to Blanton’s

October 2004 EEOC charge of discrimination, stating that “we know the results of

that charge. We know the result[ ] was no finding.” R7 at 478. A few moments

later, Blanton objected under Rule 403 to defense counsel’s statement that she had

filed her claims after the EEOC found no cause for her retaliation claim. Id. at 480.

The district court overruled the objection. After summations, the district court

instructed the jury, stating, inter alia, that:

       The lawsuit involves retaliation claims, which are separate and
       different from the discrimination claims . . . [T]he evidence needed to
       prove a discrimination claim differs significantly from evidence
       needed to prove a retaliation claim. Thus, to render your verdict, you
       need not determine whether the University of Florida discriminated
       against Ms. Blanton. Ms. Blanton asserts two claims of retaliation
       against the University of Florida. On the first claim, she alleges that
       the University of Florida retaliated against her[] when they wrote a
       letter of concern dated January [2]5, 2005, because she filed a charge
       with the Equal Employment Opportunity Commission. . . on the basis
       of sex and race. In the second claim, she alleges that the University of
       Florida retaliated against her by terminating her because she filed the
       instant lawsuit . . . . So, even if a complaint of discrimination against
       an employer is later found to be invalid and without merit, the

                                              13
       employee cannot be penalized in retaliation for having made such a
       complaint if you find the employee made the complaint as a means of
       seeking to enforce what the employee believed, in good faith, to be
       her lawful rights.


R7 at 496-98. In its written instructions, the district court again advised the jury

that it need not determine whether UF discriminated against Blanton in order to

render its verdict. The jury returned a verdict in favor of UF, as to both counts of

the complaint, finding that Blanton failed to prove by a preponderance of the

evidence that she suffered an adverse employment action after she filed the

discrimination charge and the instant lawsuit, respectively.

       On appeal, Blanton asserts that, because the sole issues at trial were whether

UF retaliated against her for filing that EEOC complaint, and whether UF

retaliated against her again after she filed the present lawsuit, no issues of

discrimination were before the jury.2 Accordingly, she argues that the EEOC’s

determination was irrelevant, or even if relevant, that its limited probative value

was substantially outweighed by the danger of unfair prejudice, and therefore, it



       2
          In her initial brief, Blanton challenges only the district court’s admission of testimony
related to the EEOC’s ultimate findings with regard to her October 2004 charge alleging
discrimination on the basis of sex and race. Any challenges to the district court’s admission of
testimony related to the EEOC’s ultimate findings with regard to her EEOC retaliation charge
have therefore been abandoned. See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001)
(per curiam) (holding that “issues and contentions not timely raised in the briefs are deemed
abandoned”).


                                                14
should have been excluded under Rule 403.

                                  II. DISCUSSION

      We review a district court’s ruling on the admissibility of evidence under a

deferential abuse of discretion standard. Goulah v. Ford Motor Co., 118 F.3d

1478, 1483 (11th Cir. 1997). Thus, “[w]e will not overturn an evidentiary ruling

unless the moving party proves a substantial prejudicial effect.” Id.

      Title VII prohibits an employer from retaliating against an employee

“because he has made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.

§ 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show

that: “(1) she participated in an activity protected by Title VII; (2) she suffered an

adverse employment action; and (3) there is a causal connection between the

participation in the protected activity and the adverse employment decision.”

Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000). Title VII’s

anti-retaliation provision “does not confine the actions and harms it forbids to

those that are related to employment or occur at the workplace,” but also covers

those actions that are “materially adverse to a reasonable employee.” Burlington

N. & Santa Fe Ry. v. White, 548 U.S. 53, __, 126 S. Ct. 2405, 2409 (2006). Under

this standard, the plaintiff must show that the employer’s actions were so adverse



                                           15
as to discourage a reasonable employee “from making or supporting a charge of

discrimination.” Id.

      EEOC determinations are generally admissible under the public records and

reports exception to the hearsay rule contained in Federal Rule of Evidence

803(8)(C), unless “the sources of information or other circumstances indicate lack

of trustworthiness” sufficient to justify exclusion from evidence. Barfield v.

Orange County, 911 F.2d 644, 650-51 (11th Cir. 1990); see Fed. R. Evid.

803(8)(C). However, EEOC determinations may be excluded from evidence in a

jury trial under Rule 403 where the probative value of the determination is

“outweighed by the danger of creating unfair prejudice in the minds of a jury.”

Barfield, 911 F.2d at 650. Whether EEOC determinations may be admitted under

Rule 403 is a decision left to the sound discretion of the district court. Id.

      We have held that a district court does not abuse its discretion in admitting

an EEOC determination that concerns the same discrimination claim as that before

the jury, where sufficient evidence was adduced at trial to place the determination

in its proper context, and the district court instructed the jury as to the appropriate

use of the determination by explaining that it is not an adjudication of rights and

liabilities. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288, 1289 (11th

Cir. 2008).



                                           16
      In this case, Blanton has failed to demonstrate that testimony regarding the

EEOC’s no-cause determination as to her prior EEOC charge of discrimination

was unduly prejudicial, especially in light of the district court’s limiting

instruction, which minimized any potential undue influence by explaining to the

jury that Blanton’s retaliation claims were separate and distinct from her prior

EEOC discrimination charge, and that it need not find that Blanton had been

discriminated against in order to find that UF had retaliated against her in violation

of Title VII. See R7 at 496-98; R3 at 99. When the testimony was introduced, the

district court advised the jury that the EEOC findings provided only “background,”

and were not conclusive of any factual issue related to Blanton’s retaliation claims.

Id. at 240-42. This instruction clarified for the jury the probative value of the

determination, and placed the determination in its proper context. See Goldsmith,

513 F.3d at 1288, 1289.

      Further, aside from a handful of references to Blanton’s original EEOC

charge, the evidence presented at trial overwhelmingly focused on either the letter

of reprimand, and the basis therefor, or the decision to cut funding for Blanton’s

position. Under these circumstances, the admission of testimony related to the

EEOC’s findings with respect to Blanton’s discrimination claim was not likely to

present the danger of creating unfair prejudice by shifting the focus from the



                                           17
ultimate issue in this case – whether UF retaliated against Blanton when it

reprimanded her and/or informed her that her position would be eliminated – to

whether Blanton had, in fact, been discriminated against on the basis of sex and

race in 2004. Because the first EEOC determination concerned Blanton’s

discrimination claim, and not the retaliation claims that were before the jury,

evidence of the determination was less likely to create a danger that the jury would

mistakenly view it as conclusive of any issue as to Blanton’s retaliation claim.

This argues against a finding of unfair prejudice.

      Even assuming, for the sake of argument, that the danger of unfair prejudice

substantially outweighed the probative value of the EEOC’s determination, and

that the district court therefore erred by overruling Blanton’s Rule 403 objections,

Blanton has failed to demonstrate that her substantial rights were prejudiced by

admission of the evidence. See Goulah, 118 F.3d at 1483. The overwhelming

evidence presented at trial established (1) that the letter of reprimand was

warranted based on her behavior at the meeting, and (2) that Blanton did not lose

any pay or rank as a result of the reprimand. Witness testimony also established

that the county made the decision to withdraw funding for the Learn to Lead

Program that resulted in the elimination of Blanton’s position. Blanton failed to

point out any evidence that UF pressured the county into making this decision.



                                          18
The jury specifically found, based on this evidence, that Blanton failed to prove

that she suffered an adverse employment action after either her first EEOC charge

or her filing of this suit.3 Nothing in the record suggests that, but for the district

court’s admission of testimony regarding the EEOC’s determination, the jury

might have found retaliation.

                                     III. CONCLUSION

       Blanton appeals the jury’s verdict in favor of UF as to her Title VII

retaliation claims. First, we conclude that the district court did not abuse its

discretion in admitting testimony as to the EEOC’s no-cause determination

regarding Blanton’s prior EEOC charge of discrimination, particularly in light of

the limiting instruction, which clarified for the jury the probative value of the

determination and placed the determination in its proper context. Second, even if

there had been abuse of discretion, we find that Blanton failed to present sufficient

evidence to establish a retaliation claim to begin with, and therefore has failed to

show that the EEOC evidence prejudiced her substantial rights. Accordingly, we

AFFIRM.



       3
         Blanton points out that the jury found the letter of reprimand not to constitute an adverse
employment action, even after counsel for UF conceded, in closing argument, that it had been
an adverse employment action, but then asserted that there was no causal connection between the
EEOC charge and the letter. This, however, is an issue of confusion between the elements of a
retaliation claim rather than confusion between a retaliation claim and a discrimination claim.

                                                19
20
